UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


S^sSSs 


SCHOOL  OF  LAW 
LIBRARY 


k/f- 


a. 


THE   LAW 


OF 


HUSBAND    AND    WIFE 


COMPILED  FOR  POPULAR  USE 


BY 


LELIA   JOSEPHINE   ROBINSON  LL.B. 

••• 

MEMBER   OF    THE   BOSTON    BAR 

AUTHOR  OF   "LAW  MADE   EASY"    "WOMEN  JURORS  IN  WASHINGTON 
TERRITORY "     ETC. 


"  Ignorantia  juris  neminem  excusat." 


10  MILK  STREET  NEXT  "  THE  OLD  SOUTH  MEETING  HOUSE  " 

NEW  YORK   CHARLES  T.  DILLINGHAM 
718  AND  720  BROADWAY 


K 


Copyright,  1889, 
BY  LEE  AND  SHEPARD. 


JOHN  WILSON  AND  SON,  CAMBRIDGE. 


TO 

THE    PORTIA    CLUB 

)ts  3Ltttle  Folutne 


IS   SINCERELY   DEDICATED 


TABLE  OF  CONTENTS. 


INTRODUCTION. 

PAGE 

Information  concerning  mutual  legal  rights  of  husband 
and  wife  greatly  needed.  —  Seasonable  knowledge 
may  prevent  grave  errors.  —  Confusion  of  popular 
ideas  on  the  subject.  —  Some  knowledge  of  the  com- 
mon law  must  first  be  had.  —  Next,  of  statute  law.  — 
Lastly,  of  judicial  decisions.  —  Suitability  of  this 
work  as  a  text-book  for  clubs  and  societies  ....  1-6 


CHAPTER    I. 

MARRIAGE. 

The  institution  of  marriage.  —  Definition.  —  Free  and 
mutual  consent  of  the  parties  essential.  —  Force  or 
fraud  will  invalidate  marriage.  —  Legal  and  mental 
capacity  necessary.  —  Age  of  consent  to  marriage.  — 
Prohibited  degrees  of  consanguinity  or  affinity.  — 
Massachusetts  statute  regulating  marriage  between 
relatives.  —  Bigamy.  —  Amalgamation  of  races.  — 
Physical  incapacity.  —  Terms,  obligations,  and  rights 
of  the  marriage  relation  are  fixed  by  municipal  law.  — 
Constant  legislative  changes  in  this  law.  —  Informal 
marriages.  —  Massachusetts  statute  concerning  the 
marriage  ceremony.  —  Legislation  in  other  States  .  7-17 


TABLE   OP   CONTENTS. 


CHAPTER    II. 


PAGE 

Husband  and  wife  one  person.  —  Doctrine  of  the  civil 
law.  —  Community  system  of  California.  —  Doctrine 
of  English  common  law.  —  Husband's  curtesy  in 
wife's  real  estate.  —  Wife's  choses  in  action.  —  Wife's 
dower  in  husband's  real  estate.  —  Ante-nuptial  con- 
tracts. —  Disabilities  of  a  married  woman  at  common 
law.  —  She  cannot  contract,  sue,  or  be  sued,  or  make 
a  will.  —  Contracts  and  gifts  directly  between  hus- 
band and  wife  invalid.  —  Husband  liable  for  wife's 
ante-nuptial  debts.  —  Also  for  wife's  debts  for  neces- 
saries. —  Old  law  permitted  husband  to  chastise  wife. 
—  Father  the  legal  guardian  of  children.  —  Legisla- 
tive changes  in  various  States 18-26 


CHAPTER    III. 

WIFE'S    SEPARATE    ESTATE. 

Doctrine  of  English  Courts  of  Equity.  —  Wife's  con- 
tracts upheld  in  these  courts.  —  Rule  followed  iu 
many  States.  —  The  doctrine  of  trusts.  —  Marriage 
settlements.  —  Wife's  pin-money.  —  Legislative  ac- 
tion in  the  United  States  and  England.  —  Massachu- 
setts law  concerning  wife's  legal  powers,  rights,  and 
liabilities.  —  She  cannot  contract  with  her  husband. 
—  Such  contracts  and  conveyances  may  be  effected 
through  the  intervention  of  a  third  person.  —  A  mar- 
ried woman's  certificate.  —  In  many  States  a  wife 
may  trade  alone  if  her  husband  consents.  —  Husband 
must  maintain  wife  and  children.  —  "Pauper  hus- 


TABLE   OP   CONTENTS.  vii 

PAGE 

bands'  relief  bill."  —  In  some  Western  States  both 
parents  have  an  equal  claim  on  children.  —  And  in 
some,  husband  and  wife  may  contract  together  and 
convey  property  to  each  other.  —  English  married 
women's  property  act 27-35 


CHAPTER    IV. 
WIFE'S  SUPPORT.  —  SEPARATE  MAINTENANCE. 

Husband's  liability  for  wife's  debts.  —  She  can  bind  him 
only  for  necessaries,  and  only  by  contracting  as  his 
agent.  —  And  not  then  if  he  provides  her  with  neces- 
saries. —  He  may  make  her  his  agent  for  any  purpose. 
—  Presumption  of  wife's  agency  to  purchase  neces- 
saries. —  "  Posting  "  a  wife.  —  Presumption  against 
wife's  agency  when  separated  from  husband.  —  Ne- 
cessaries may  be  furnished  to  destitute  wife  when 
justifiably  separated.  —  Husband  may  decide  as  to 
place  and  manner  of  living.  —  Proceedings  by  wife 
for  decree  of  separate  maintenance  and  custody  of 
children.  —  Massachusetts  statute  on  this  subject  .  36-44 


CHAPTER    V. 

CUSTODY    OF    CHILDREN. 

Policy  of  the  law  is  to  seek  the  best  interests  of  chil- 
dren. —  Parents  have  no  abstract  legal  right  to  custody 
of  children.  —  An  infamous  English  decision.  —  In 
United  States  the  courts  may  exercise  discretion.  — 
May  take  children  from  both  parents  and  give  cus- 
tody to  a  third  person.  —  Tendency  has  been  towards 
favoring  the  father's  claim.  —  Reasons  for  this.  — 


Vlll  TABLE   OF   CONTENTS. 

PAGE 

Two  Massachusetts  cases.  — Modern  tendency  in 
many  States  towards  equalization  of  rights  of  guard- 
ianship in  both  parents.  —  Statutory  enactments  in 
some  States.  —  Contradictory  legislation  in  New 
York.  —  Decrees  on  divorce  or  separation  concerning 
children  may  be  altered  by  the  court  at  any  time.  — 
A  vexed  and  difficult  question.  —  Great  advance  since 
the  time  of  Blackstone  ....  .  .  .  .  45-52 


CHAPTER    VI. 

CLAIMS   OF    WIDOW   AND   WIDOWER. 

Right  of  administration  on  estate  of  deceased  husband 
or  wife.  —  General  rule  concerning  descent  of  real 
estate  and  distribution  of  personal  estate.  —  Statutes 
regulate  appointment  of  administrators.  —  Widower 
is  entitled  to  administer  on  wife's  estate.  —  Widow 
may  generally  be  appointed  administratrix  of  hus- 
band's estate.  —  The  rule  in  Massachusetts.  —  Share 
of  widow  or  widower  in  distribution  of  personal  es- 
tate. —  Common  law  gives  to  widower  all  his  wife's 
personalty.  —  Massachusetts  law  gives  him  half.  — 
Old  common  law  gave  to  a  widow  none  of  her  hus- 
band's personalty.  —  An  English  statute  gave  her  one 
third.  —  Massachusetts  law  gives  her  one  third,  or  if 
no  child  survives,  a  larger  share.  —  Massachusetts 
widow  may  waive  her  husband's  will  and  claim  her 
statutory  share.  —  Comparative  advantages  and  dis- 
advantages of  the  Massachusetts  law  of  distribution 
relating  to  widows  and  widowers.  —  Common  law  re- 
quired a  widow  or  widower  to  bury  the  deceased 
spouse.  —  Late  Massachusetts  decision  contrary.  — 
Burial  not  a  necessary  of  life.  —  At  common  law  a 
wife  could  not  make  a  will.  —  Woman's  will  made 


TABLE   OF   CONTENTS.  IX 

PAGE 

before  marriage  revoked  by  the  marriage. — Modern 
law  allows  wives  to  make  wills  under  restrictions. 
—  Rule  in  Massachusetts  and  other  States  concerning 
married  women's  wills  .  ...  53-00 


CHAPTER    VII. 

DIVORCE. 

Early  parliamentary  divorces  in  England.  —  Distinctions 
still  made  between  claim  of  husband  on  ground  of 
adultery,  and  that  of  wife.  —  A  recent  case  of  inter- 
est in  Canada.  —  Distinctions  between  claims  made 
by  husband  and  by  wife  in  some  of  our  States.  — 
Causes  for  divorce.  —  Difficulties  in  proving  non- 
support. —-No  such  cause  as  "incompatibility  of 
temper."  — Causes  distinctly  set  forth  in  statutes  of 
each  State.  —  Concerning  imprisonment  as  a  cause.  — 
Drunkenness.  — Cruelty.  —  Desertion.  — Various  ways 
in  which  desertion  may  occur.  —  Separation  by 
mutual  consent  is  not  desertion,  and  no  cause  for  di- 
vorce. —  Adultery.  —  Only  cause  for  absolute  divorce 
in  New  York.  —  Divorce  from  bed  and  board. — A 
decree  of  nullity.  —  Divorce  nisi.  —  In  Massachusetts 
all  divorces  are  nisi.  —  A  decree  of  divorce  cannot  be 
had  by  default  of  defendant.  —  Plaintiff  must  always 
prove  a  case.  —  Defences  to  action  for  divorce.  — 
Collusion.  —  Connivance.  —  Condonation.  —  Recrim- 
ination.—  The  question  of  domicile. —  Fraudulent 
domiciles  make  fraudulent  divorces.  —  Concerning 
alimony.  —  Costs  of  suit.  —  Custody  of  children  .  61-72 


ALABAMA. 

PAGE 

Wife's  legal  status 73 

Claims  of  widow  and  widower  on  property 74 

Divorce .      74-75 

ARIZONA  TERRITORY. 

Wife's  legal  status 75-76 

Claims  of  widow  and  widower  on  property 76 

Divorce 76 

ARKANSAS. 

Wife's  legal  status 77 

Claims  of  widow  and  widower  on  property 77 

Divorce 77-78 

CALIFORNIA. 

Wife's  legal  status 78-79 

Claims  of  widow  and  widower  on  property 79-80 

Divorce 80 

COLORADO. 

Wife's  legal  status .    .    . . '  .    80-81 

Claims  of  widow  and  widower  on  property 81 

Divorce  .    81-82 


Xll  ABSTRACTS   OF   STATUTES. 

CONNECTICUT. 

Wife's  legal  status 82-83 

Claims  of  widow  and  widower  on  property 84 

Divorce      ...        85 

DAKOTA. 

Wife's  legal  status 85-86 

Claims  of  widow  and  widower  on  property 86-87 

Divorce 87 

DELAWARE. 

Wife's  legal  status 88 

Claims  of  widow  and  widower  on  property 88-89 

Divorce 89 

DISTRICT  OF  COLUMBIA. 

Wife's  legal  status 90 

Claims  of  widow  and  widower  on  property 90 

Divorce 91 

FLORIDA. 

Wife's  legal  status 91-92 

Claims  of  widow  and  widower  on  property 92 

Divorce 92 

GEORGIA. 

Wife's  legal  status 93 

Claims  of  widow  and  widower  on  property 93-94 

Divorce 94 

IDAHO  TERRITORY. 

Wife's  legal  status 94-95 

Claims  of  widow  and  widower  on  property 95 

Divorce 96 


ABSTRACTS   OF   STATUTES.  Xlll 

ILLINOIS. 

Wife's  legal  status 96 

Claims  of  widow  and  widower  on  property 96-97 

Divorce 97 

INDIANA. 

Wife's  legal  status 98 

Claims  of  widow  and  widower  on  property 98-99 

Divorce    99-100 

IOWA. 

Wife's  legal  status 100-101 

Claims  of  widow  and  widower  on  property 101 

Divorce   101-102 

KANSAS. 

Wife's  legal  status 102 

Claims  of  widow  and  widower  on  property 102-103 

Divorce     .    . 103 

KENTUCKY. 

Wife's  legal  status 103-104 

Claims  of  widow  and  widower  on  property 104 

Divorce 105 

LOUISIANA. 

Wife's  legal  status 106 

Claims  of  widow  and  widower  on  property 107 

Divorce 107-108 

MAINE. 

Wife's  legal  claim 108 

Claims  of  widow  and  widower  on  property 108 

Divorce    .  109 


XIV  ABSTRACTS   OF  STATUTES. 

MARYLAND. 

Wife's  legal  status 109 

Claims  of  widow  and  widower  on  property 110 

Divorce 110 

MASSACHUSETTS. 

Wife's  legal  status 111-112 

Claims  of  widow  and  widower  on  property 112-113 

Divorce     ..-..., 113-114 

MICHIGAN. 

Wife's  legal  status 114 

Claims  of  widow  and  widower  on  property 114-115 

Divorce    .    .    .  , 115-116 

MINNESOTA. 

Wife's  legal  status 116-117 

Claims  of  widow  and  widower  on  property 117 

Divorce 117-118 

MISSISSIPPI. 

Wife's  legal  status 118-119 

Claims  of  widow  and  widower  on  property 119 

Divorce 119 

MISSOURI. 

Wife's  legal  status 120 

Claims  of  widow  and  widower  on  property 120-121 

Divorce 121 

MONTANA. 

Wife's  legal  status 121-122 

Claims  of  widow  and  widower  on  property 122 

Divorce    .  ...    123 


ABSTRACTS   OP  STATUTES.  XV 

NEBRASKA. 

Wife's  legal  status 123-124 

Claims  of  widow  and  widower  on  property 124 

Divorce 124-125 

.  '     NEVADA. 

Wife's  legal  status 125 

Claims  of  widow  and  widower  on  property 126 

Divorce 126-127 

NEW  HAMPSHIRE. 

Wife's  legal  status 127-128 

Claims  of  widow  and  widower  on  property 128 

Divorce 128-129 

•   :       NEW  JERSEY. 

Wife's  legal  status 129-130 

Claims  of  widow  and  widower  on  property 130 

Divorce 130-131 

TERRITORY  OF  NEW  MEXICO. 

Wife's  legal  status 131-132 

Claims  of  widow  and  widower  on  property 132 

Divorce 132 

NEW  YORK. 

Wife's  legal  status 133 

Claims  of  widow  and  widower  on  property 133-134 

Divorce 134-135 

NORTH  CAROLINA. 

Wife's  legal  status 135 

Claims  of  widow  and  widower  on  property 135-136 

Divorce 130 


Xvi  ABSTRACTS   OF   STATUTES. 

OHIO. 

Wife's  legal  status 1-36-137 

Claims  of  widow  and  widower  on  property 137-138 

Divorce 138 

OREGON. 

Wife's  legal  status 139 

Claims  of  widow  and  widower  on  property 139-140 

Divorce         140 

PENNSYLVANIA. 

Wife's  legal  status 140-141 

Claims  of  widow  and  widower  on  property 142 

Divorce 142-143 

RHODE  ISLAND. 

Wife's  legal  status 143-144 

Claims  of  widow  and  widower  on  property 144 

Divorce 144-145 

SOUTH  CAROLINA. 

Wife's  legal  status 145 

Claims  of  widow  and  widower  on  property 145-140 

TENNESSEE. 

Wife's  legal  status 146-147 

Claims  of  widow  and  widower  on  property 147 

Divorce 148 

TEXAS. 

Wife's  legal  status 148-149 

Claims  of  widow  and  widower  on  property 149 

Divorce    ....  160 


ABSTRACTS   OP   STATUTES.  xvii 

UTAH  TERRITORY. 

Wife's  legal  status 150 

Claims  of  widow  and  widower  on  property 151 

Divorce 152 

VERMONT. 

Wife's  legal  status , 151-152 

Claims  of  widow  and  widower  on  property 152 

Divorce 153 

VIRGINIA. 

Wife's  legal  status 154 

Claims  of  widow  and  widower  on  property 154-155 

Divorce 155 

WASHINGTON. 

Wife's  legal  status 156-157 

Claims  of  widow  and  widower  on  property 157 

Divorce 158 

WEST  VIRGINIA. 

Wife's  legal  status 158-159 

Claims  of  widow  and  widower  on  property 159 

Divorce 159-160 

WISCONSIN. 

Wife's  legal  status 160 

Claims  of  widow  and  widower  on  property 160-161 

Divorce 161-162 

WYOMING  TERRITORY. 

Wife's  legal  status 162 

Claims  of  widow  and  widower  on  property 162 

Divorce 163 


LAW   OF  HUSBAND  AND  WIFE. 


LAW  OF   HUSBAND  AND  WIFE. 


INTRODUCTION. 

THERE  is  probably  no  subject  on  which  informa- 
tion is  more  sought  or  more  needed  by  the  people 
of  the  United  States  than  the  law  denning  the  mu- 
tual rights  of  husband  and  wife,  the  respective 
claims  of  each  on  the  property  of  the  other  during 
the  continuance  of  the  marriage  relation  and  after 
its  termination  by  death  or  divorce,  the  ability  or 
disability  of  married  women  to  make  contracts, 
sue  and  be  sued,  enter  into  business  or  trade  rela- 
tions, or  to  form  business  partnerships,  either  with 
third  persons  or  with  their  husbands  ;  and  unfor- 
tunately also  there  is  a  very  considerable  demand 
for  information  on  the  subject  of  separation,  di- 
vorce, the  custody  of  children,  and  alimony.  Such 
information  should  always  be  obtained  from  some 
reliable  lawyer  when  especial  occasion  arises  there- 
for ;  and  all  the  facts  of  the  particular  case  should 
be  set  forth  carefully,  so  that  his  advice  may  be 
intelligently  given  and  safely  followed.  But  people 
in  this  age  of  individualism  have  an  irrepressible 


2  LAW   OP    HUSBAND   AND   WIFE. 

desire  for  knowledge  of  their  own  on  all  subjects 
which  appertain  to  every-day  life,  and  they  are  not 
willing  to  rest  ignorant  of  the  laws  governing  the 
marriage  relation,  nor  will  they  be  content  with 
such  stray  fragments  of  knowledge  as  they  may 
obtain  in  the  way  of  legal  advice  when  occasion 
imperatively  demands  that  it  be  asked  and  paid  for. 
Nor  are  they  far  wrong,  for  even  admitting  that 
the  maxim,  "  A  little  learning  is  a  dangerous 
thing,"  applies  more  forcibly  to  a  smattering  of  law 
than  to  other  branches  of  knowledge,  it  is  often 
much  more  emphatically  true  that  the  despised 
mite  of  information  gained  in  season  would  save 
people  from  blunders  whose  effects  can  be  rem- 
edied, if  at  all,  only  by  the  expenditure  of  a  great 
deal  of  money,  time,  and  trouble.  Especially  since 
the  common-law  status  of  married  women,  and  pro- 
visions for  the  distribution  of  property  of  a  deceased 
husband  or  wife,  have  been  changed  almost  beyond 
recognition  in  nearly  every  State  of  the  Union,  no 
two  of  which  entirely  agree  on  these  points,  the 
result  has  been  that  people  have  confused  ideas  of 
their  legal  rights,  and  frequently,  not  recognizing 
the  necessity  for  legal  aid,  they  act  without  either 
advice  or  knowledge,  to  their  own  disadvantage. 
An  illustration  which  not  seldom  arises  in  Massa- 
chusetts is  the  confusion  into  which  our  statutory 
enactments  of  the  last  twenty  years  have  thrown 


INTRODUCTION.  3 

the  subject  of  married  women's  contracts.  Appar- 
ently the  law  is  very  clear  and  simple.  A  married 
woman  may  make  any  contracts  which  her  husband 
may  make,  and  they  will  be  as  valid  and  binding  on 
her  as  on  him.  But  let  husband  and  wife  attempt 
to  make  any  kind  of  contract  with  each  other,  and  it 
is  absolutely  void.  If  the  husband  loans  his  wife 
money  and  takes  a  mortgage  on  her  property  as 
security,  or  if  she  makes  a  loan  to  him  and  he 
gives  her  his  note  for  the  amount,  and  the  transac- 
tion takes  place  with  entire  good  faith  on  both 
sides,  it  is  none  the  less  invalid,  and  the  money 
cannot  be  claimed  from  the  other's  estate  in  case  of 
death  or  insolvency  ;  while  the  note  and  mortgage 
are  mere  waste  paper. 

A  general  idea  of  the  common  law  on  this  class 
of  subjects  should  certainly  be  a  part  of  the  educa- 
tion of  every  individual,  supplemented  by  as  much 
information  concerning  the  statute  law  of  his  or  her 
own  State  as  can  be  gained ;  and  this  knowledge 
may  be  safely  had,  provided  it  be  remembered  that 
in  cases  where  action  of  any  kind  must  be  taken, 
it  will  not  be  safe  to  rely  on  such  fragmentary 
knowledge,  the  only  course  being  to  take  the 
best  professional  advice  that  can  be  had,  and  to 
follow  it. 

It  is  this  general  idea  of  the  common  law  con- 
cerning marriage  and  divorce  which  the  chapters 


LAW   OF   HUSBAND   AND   WIFE. 

of  this  little  volume  will  endeavor  to  give  in  as 
simple  and  popular  a  form  as  possible ;  while  the 
abstracts  in  the  latter  part  will  give  a  condensation 
of  the  more  important  statutory  enactments  on  the 
subject  in  the  various  States.  It  must  be  remem- 
bered that  the  common  law  underlies  the  statute 
law  in  all  our  States  except  in  the  few  which  were 
first  settled  by  other  nations  than  the  English, 
and  that  it  still  prevails  except  just  so  far  as  it 
has  been  changed  by  the  Legislature ;  so  that  it  is 
necessary  to  know  the  common  law  first,  and  then 
build  upon  it  the  ever-changing  structure  of  statute 
law.  The  abstracts  will  give  the  statute  laws  on 
the  subject  as  they  exist  at  the  date  of  this  present 
writing,  so  far  at  least  as  the  latest  volumes  from 
the  various  States  are  obtainable  at  our  law  libra- 
ries. And  in  later  editions  of  the  work,  such 
changes  will  be  made  as  legislative  action  may 
make  necessary ;  but  any  one  who  has  the  book  and 
chooses  to  do  so,  may  keep  himself  informed  by  ex- 
amining the  laws  of  his  own  State  passed  at  future 
sessions,  and  annotating  his  copy  whenever  neces- 
sary. For  the  information  of  those  who  may  wish 
to  pursue  the  subject  further  than  its  brief  treat- 
ment herein,  I  will  add  that  in  each  State  the  decis- 
ions contained  in  the  volumes  of  reports  of  cases 
tried  in  the  higher  courts  construe  and  declare  the 
application  of  the  law  in  that  State,  both  common 


INTRODUCTION.  5 

and  statute ;  and  that  by  visiting  a  law  library  or 
the  office  of  a  friendly  attorney,  and  referring  to 
a  digest  of  the  decisions,  or  to  the  indexes  of  the 
volumes  of  reports  themselves,  any  one  may  find  the 
cases  on  the  subject,  and  may  read  them  with  more 
or  less  advantage  according  to  the  degree  of  tech- 
nicality which  involves  them.  Many  of  these  cases 
would  be  entirely  intelligible  to  any  person  un- 
learned in  the  law,  who  had  read  these  few  follow- 
ing pages.  I  have  seriously  considered  the  advis- 
ability of  citing  cases  in  support  of  the  propositions 
of  law  which  I  have  laid  down  ;  but  to  do  so  to  such 
extent  as  to  be  useful  to  readers  in  different  parts 
of  the  country  would  be  only  to  encumber  my  pages 
with  material  for  which  probably  but  few  readers 
would  care,  and  I  have  therefore  concluded  to  omit 
them  altogether,  and  leave  each  one  who  cares  to 
read  cases  to  find  them  for  himself  through  the 
medium  of  digests  and  indexes.  The  best  text- 
books are  Mr.  Bishop's  "  Commentaries  on  the  Law 
of  Marriage  and  Divorce  "  and  "  Commentaries  on 
the  Law  of  Married  Women;"  and  Mr.  Schouler's 
"  Treatise  on  the  Law  of  Domestic  Relations." 

A  strong  demand  has  been  made  on  me  for  such 
a  work  as  this  ever  since  my  larger  book,  "  Law 
Made  Easy,"  was  published  a  few  years  ago ; 
and  from  no  source  has  the  .call  been  louder  or 
more  persistent  than  from  clubs  and  societies  of 


6  LAW   OF   HUSBAND   AND   WIFE. 

women  all  over  the  country  who  are  banded  to- 
gether for  study,  and  who  seek  among  the  first 
branches  of  knowledge  some  information  regard- 
ing the  laws  that  especially  concern  women,  and  I 
have  had  these  societies  constantly  in  mind  while 
preparing  the  work.  I  think  it  will  furnish  exactly 
the  line  of  study  which  they  desire,  for  the  laws 
that  especially  concern  women  are  only  those  on 
the  marriage  relation.  Except  in  the  way  of  polit- 
ical disabilities,  there  are  now  no  laws  that  discrim- 
inate against  women  as  women,  —  or  rather  those 
that  do  so  are  so  very  few  and  of  such  minor  impor- 
tance as  to  be  scarcely  worth  considering ;  but  it 
is  at  her  marriage  that  a  woman  walks  into  a  com- 
plicated legal  net  whose  meshes  entangle  her  the 
more  closely  with  every  step  she  takes,  unless  she 
is  led  intelligently  by  the  guide  whose  name  is 
Knowledge.  Time  may  be  when  all  this  will  be 
changed,  and  the  law  concerning  marriage  and 
married  women  will  be  simple  and  clear ;  but 
that  time  is  not  yet. 

That  the  subject  of  this  work  is  of  the  same 
interest  to  men  as  to  women  goes  without  saying, 
for  whatever  stage  of  enfranchisement  our  •  sex 
may  attain,  we  can  never  enter  the  marriage  rela- 
tion independently  of  the  other. 

LELTA  JOSEPHINE  ROBINSON. 

BOSTON,  June,  1889. 


CHAPTER   I. 

MAREIAGE. 
"  It  is  not  good  that  man  should  be  alone." 

THE  institution  of  marriage  is  the  foundation- 
stone  of  the  social  structure.  All  that  has  been  wise 
and  noble,  beneficent  and  valuable,  in  the  successive 
civilizations  of  ancient  and  modern  times,  has  been 
directly  traceable,  in  greater  or  lesser  degree,  to 
this  underlying  principle  of  the  family  life ;  and 
the  direct  result  of  the  introduction  of  carelessness 
and  licentiousness  into  the  matrimonial  relation 
has  always  been  the  deterioration  of  the  social  and 
political  structures. 

The  higher  forms  of  civilization  have  always  been 
attended  by  monogamous  marriage,  which  has  been 
cherished  by  the  Government  and  protected  by  its 
laws  as  the  chief  object  of  its  regard,  well  know- 
ing that  on  its  careful  preservation  all  of  general 
good  depends.  Great  changes  have  taken  place 
from  time  to  time  in  the  nature  of  these  laws  regu- 
lating marriage  and  the  rights  and  disabilities  of 
the  parties  to  it;  but  in  the  main,  the  intention 
of  law-makers  in  all  times  has  doubtless  been  to 


8  LAW   OF    HUSBAND    AND    WIPE. 

secure  the  greatest  good  to  the  greatest  number, 
and  the  tendency  has  been  continually  toward  im- 
provement, until  now,  in  a  few  of  our  Western 
States,  the  ultimatum  of  possibility  concerning  the 
property  rights  of  husband  and  wife  seems  to  be 
rapidly  approaching. 

It  is  always  well  to  have  a  definition  on  which 
to  base  consideration  of  any  subject ;  and  that  of 
marriage  given  in  Bouvier's  Law  Dictionary  is  a 
fairly  good  one :  "  Marriage  is  a  contract,  made  in 
due  form  of  law,  by  which  a  man  and  woman  recip- 
rocally engage  to  live  with  each  other  during  their 
joint  lives  and  to  discharge  toward  each  other  the 
duties  imposed  by  law  on  the  relation  of  husband 
and  wife." 

Marriage  is  undoubtedly  a  contract,  but  it  differs 
in  several  important  particulars  from  all  other  con- 
tracts ;  and  being  by  far  the  most  important  of 
human  transactions,  it  should  be  understood  more 
clearly  and  definitely  in  its  legal  relations  than  it 
usually  is. 

It  is  a  contract,  because  the  first  essential  to  its 
creation  is  the  free  and  mutual  consent  of  the  par- 
tics  who  bind  themselves  by  its  vows.  If  this  con- 
sent be  gained  by  the  exercise  of  force  or  fraud,  the 
marriage  may  be  set  aside.  But  mere  over-persua- 
sion brought  to  bear  on  a  young  girl  by  her  rela- 
tives, in  consequence  of  which  she  is  induced, 


AGE   OF   CONSENT   TO   MARRIAGE.  9 

against  her  wishes  and  better  judgment,  to  marry 
a  man  she  dislikes,  is  not  such  force  as  will  invali- 
date the  marriage,  even  though  she  leave  her  hus- 
band a  few  days  after  the  ceremony,  as  I  was 
obliged  to  tell  an  unhappy  woman  who  came  to  me 
for  advice  a  few  days  ago.  She  has  no  remedy. 

In  this,  as  in  all  contracts,  the  parties  must  be 
legally  and  mentally  capable  of  binding  themselves. 
But  the  legal  qualifications  of  capacity  differ,  for 
while  minors  may  not  bind  themselves  by  other 
contracts  (except  by  a  limited  class  known  as  "  for 
necessaries"),  they  may  by  that  of  marriage  after 
having  passed  the  age  of  childhood,  fixed  by  com- 
mon law  at  fourteen  for  boys'  and  twelve  for  girls, 
and  by  statute  in  some  States  at  a  year  or  two  older. 

If  a  child  below  the  legal  age  should  marry,  the 
marriage  is  not  necessarily  invalid,  provided  he  or 
she  be  above  the  age  of  seven  years.  If  the  parties 
continue  to  live  together  after  both  have  attained 
legal  .age,  the  marriage  is  thus  ratified  ;  but  either 
party  may  disaffirm  it  by  ceasing  to  live  with  the 
other  before  that  time  arrives.  This  is  the  com- 
mon-law rule  on  the  subject;  and  as  has  been  said 
before,  it  is  still  law  wherever  it  has  not  been  dis- 
tinctly set  aside  or  changed  by  statute.  No  statute 
in  Massachusetts  has  established  any  other  rule. 

On  the  other  hand,  parties  who  are  related  to 
each  other  within  certain  specified  degrees  of  affinity 


10  LAW   OF   HUSBAND   AND   WIFE. 

or  consanguinity  may  enter  into  any  other  contract 
with  each  other,  but  not  into  that  of  marriage. 
The  rule  is  general  everywhere  in  modern  times 
that  relatives  nearer  than  first  cousins  cannot 
marry  and  in  some  States  marriage  is  not  allowed 
between  relatives  of  this  degree.  The  disqualifica- 
tion of  affinity,  prohibiting  marriage  with  near  rel- 
atives of  a  deceased  wife  or  husband,  is  not  drawn 
so  strictly  in  this  country  as  in  England,  where 
marriage  with  a  deceased  wife's  sister  or  husband's 
brother  is  forbidden.  The  statute  regulating  this 
subject  in  Massachusetts,  which  may  be  taken  as 
a  fair  sample  of  those  generally  in  force  in  the 
United  States,  is  as  follows  :  — 

"No  man  shall  marry  his  mother,  grandmother, 
daughter,  granddaughter,  step-mother,  sister,  grand- 
father's wife,  son's  wife,  grandson's  wife,  wife's  mother, 
wife's  grandmother,  wife's  daughter,  wife's  grand- 
daughter, brother's  daughter,  sister's  daughter,  father's 
sister,  or  mother's  sister.  No  woman  shall  marry  her 
father,  grandfather,  son,  grandson,  step-father,  brother, 
grandmother's  husband,  daughter's  husband,  grand- 
daughter's husband,  husband's  father,  husband's  grand- 
father, husband's  son,  husband's  grandson,  brother's 
son,  sister's  son,  father's  brother,  or  mother's  brother." 

There  are  other  disqualifications  for  marriage 
which  do  not  disqualify  for  other  contracts,  chief 
among  which  is  that  of  a  previous  valid  marriage 


DISQUALIFICATIONS   FOR   MAERIAGE.  11 

of  either  party  which  has  not  been  annulled  by 
death  or  divorce.  A  marriage  illegal  for  this 
cause  is  void  from  the  beginning,  and  the  guilty 
party  is  liable  for  bigamy. 

The  disqualification  of  race  chiefly  obtains  in 
our  Southern  States  and  a  few  of  the  Western  ones, 
where  marriage  between  whites  and  persons  of  color 
is  generally  void  and  renders  the  parties  liable  to 
criminal  prosecution. 

Physical  incapacity  for  the  marriage  relation 
also  disqualifies. 

Marriage  further  differs  from  the  ordinary  con- 
tract iii  this,  —  that  while  parties  to  the  latter  may 
arrange  its  terms  and  obligations  to  suit  them- 
selves, the  terms,  obligations,  and  rights  of  the 
marriage  relation,  and  the  duties  arising  therefrom 
to  each  other,  to  children,  and  to  the  public,  are 
fixed  for  all  by  the  general  law  of  the  land,  and 
can  only  be  altered  by  legislative  act.  By  mutual 
consent,  too,  the  parties  to  other  contracts  may  ter- 
minate their  relations  at  any  time,  but  the  parties 
to  a  marriage  contract  cannot  do  this  ;  nor  is  the 
marriage  terminated  by  the  subsequent  incapacity, 
mental  or  physical,  of  one  party  to  perform  his 
or  her  marital  duties,  although  if  such  incapacity 
existed  at  the  time  when  the  marriage  was  cele- 
brated, it  would  absolutely  disqualify  the  party 
from  entering  into  the  marital  relation  and  assum- 


12         LAW  OF  HUSBAND  AND  WIFE. 

ing  its  duties.  Many  people  suppose  that  hopeless 
insanity  after  marriage  will  give  the  other  party 
divorce,  but  the  heartless  cruelty  of  such  a  cause 
must  bt,  apparent  on  second  thought  to  all,  and 
there  is  but  one  State  where  it  is  named  as  a  ground 
therefor.  A  valid  marriage  once  entered  into  can 
only  be  terminated  in  one  of  two  ways ;  namely,  by 
the  death  of  either  party,  or  by  a  judicial  decree  of 
divorce  given  by  a  tribunal  which  has  jurisdiction 
over  the  case,  and  in  exact  accordance  with  the 
laws  regulating  the  subject  in  the  particular  State 
where  the  action  is  taken.  "  The  obligation  is  cre- 
ated by  the  public  law,  subject  to  the  public  will, 
and  not  to  that  of  the  parties." 

This  public  law,  in  establishing  the  marital  rela- 
tion, has  conferred  certain  privileges  on  parties 
thereto,  and  imposed  certain  disqualifications  like- 
wise, the  nature  of  which  has  greatly  changed  as 
the  centuries  have  passed  from  the  old  to  the  new, 
bringing  with  them  the  demands  and  necessities  of 
our  later  civilization.  These  changes  are  still  mak- 
ing, and  will  continue  so  to  do  until  the  relations  of 
husband  and  wife  to  each  other,  to  their  children,  to 
the  public,  and  concerning  their  respective  property 
rights,  shall  give  general  satisfaction.  There  has 
been  a  vast  deal  of  legislation  on  this  subject  dur- 
ing the  past  forty  years,  both  in  this  country  and 
in  England,  —  and  indeed  in  Continental  couii- 


INFORMAL   MARRIAGES.  13 

tries  where  the  common  law  does  not  prevail,  as 
witness  the  recent  divorce  law  in  France  ;  and  so 
continually  and  rapidly  have  the  alterations  suc- 
ceeded one  another  from  year  to  year  that  no  law- 
yer will  venture  to  state  what  the  law  is  regarding 
marriage  or  divorce  in  any  other  State  than  his 
own,  without  carefully  examining  the  statutory 
enactments  and  judicial  decisions  thereon. 

The  principles  of  law  concerning  the  celebration 
of  marriage  have  come  down  to  us  through  the 
centuries  from  remote  times,  but  not  without  im- 
portant changes ;  and  the  subject  is  one  which  is 
now  exciting  the  attention  of  some  of  our  greatest 
legal  and  ethical  minds,  but  concerning  which  there 
is  not  a  little  diversity  of  opinion. 

By  the  old  canon  law,  consensual  marriages  were 
valid  ;  that  is,  the  -mutual  consent  of  the  parties 
themselves  was  sufficient  without  further  formali- 
ties or  restrictions.  This  was  the  law  in  force 
when  the  colonists  founded  our  country,  and  it  was 
brought  with  them,  thus  becoming  the  common  law 
here.  By  the  Council  of  Trent,  the  doctrine  of  the 
canon  law  in  this  respect  was  changed,  and  a  code 
of  severe  restrictions  imposed.  But  the  provisions 
of  this  council  were  only  binding  where  they  were 
formally  adopted  by  the  secular  authorities ;  and 
they  were  not  thus  adopted  in  the  French  or  Span- 
ish colonies  of  America,  and  consequently  these 


14  LAW   OF   HUSBAND    AND   WIFE. 

restrictions  never  became  the  law  in  those  colonies, 
nor  in  the  States  which  have  been  formed  from 
them.  Nor  were  they  ever  adopted  in  England, 
where,  however,  certain  restrictions  on  the  solem- 
nization of  marriage  were  imposed  during  the  reign 
of  George  II.,  by  which  it  was  provided,  among 
other  things,  that  marriages  must  be  performed  by 
parish  priests  and  within  canonical  hours.  But 
these  provisions  did  not  apply  to  the  colonies  ;  so 
by  the  common  law  of  our  entire  country,  the  free 
and  mutual  consent  of  parties,  followed  by  cohabi- 
tation, was  sufficient  to  constitute  a  valid  marriage, 
and  all  further  restrictions  are  of  purely  statutory 
origin  in  the  various  States.  In  some  States, 
where  the  statute  provides  for  certain  preliminaries 
and  formalities  concerning  licenses,  witnesses,  and 
the  parties  who  shall  be  competent  to  solemnize 
marriage,  the  result  is  not  to  invalidate  marriages 
which  take  place  without  these  formalities,  but  to 
provide  an  easy  and  recognized  legal  proof  of  mar- 
riage for  those  who  choose  to  avail  themselves  of  it, 
and  to  impose  penalties  on  clergymen  or  others 
who  solemnize  it  without  regard  to  these  restric- 
tions ;  for  however  valid  a  marriage  of  mere  con- 
sent may  be,  it  is  usually  a  very  difficult  matter  to 
prove  its  validity.  But  it  has  been,  and  probably 
still  is,  the  policy  of  the  law  of  our  country  to  en- 
courage marriage,  and  to  uphold  it  in  every  way 


INFORMAL    MARRIAGES.  15 

possible.  To  quote  from  Mr.  Bishop,  whose  treatise 
on  "  Marriage  and  Divorce  "  is  an  admitted  author- 
ity everywhere,  — 

"There  was  a  time  when  the  Anglo-Saxon  race, 
though  rude  and  uncultivated  in  modern  chicanery, 
never  inflicted  the  disgrace  of  concubinage  on  a  woman 
who  lived  with  one  man,  and  one  man  only,  as  his  wife, 
and  bore  him  children,  unless  the  man  was  of  too  near 
affinity  or  consanguinity  to  her,  or  unless  he  had  an- 
other wife  to  whom  he  was  earlier  married.  But  in 
these  da}-s  of  modern  refinement,  man}*  an  Anglo-Saxon 
woman  learns,  or  her  offspring  after  she  is  dead  learns, 
that  some  slip  in  the  form  of  marriage  has  made  her  a 
sort  of  select  strumpet,  and  has  made  her  children 
bastards.  Men  who  like  to  deceive  honest  women,  and 
men  who  value  riches  in  a  wife,  or  a  settlement,  more 
than  they  value  true  marriage,  admire  this,  and  they 
consider  the  Scotch  people,  who  do  not  like  it,  and  the 
people  of  some  of  our  States,  who  also  do  not  like  it, 
to  be,  by  reason  of  their  want  of  love  for  refinement, 
almost  barbarous.  May  barbarism,  if  this  is  such, 
long  prevail  in  the  United  States ! " 

The  provisions  of  the  Massachusetts  statute  con- 
cerning the  solemnization  of  marriage,  require 
that  the  vows  he  taken  before  a  justice  of  the  peace, 
or  a  minister  of  the  gospel  ordained  according  to 
the  usages  of  his  denomination,  and  who  resides  in 
the  Commonwealth  and  continues  to  perform  the 
functions  of  his  office ;  and  every  marriage  must  be 


16  LAW   OF   HUSBAND   AND   WIPE. 

solemnized  in  the  city  or  town  in  which  the  person 
solemnizing  it,  or  one  or  both  of  the  parties  to  it, 
resides.  But  an  exception  is  made  in  favor  of, 
Quakers,  who  may  be  married  according  to  their 
own  society  practice.  The  statute  also  makes 
explicit  provisions  concerning  the  notice  of  inten- 
tion to  marry,  which  must  be  previously  filed  with 
the  town  clerk,  and  concerning  the  certificate  to  be 
given  by  him,  and  imposes  penalties  upon  the  clerk 
for  issuing  such  certificate  to  a  male  under  twenty- 
one,  or  a  female  under  eighteen  years  of  age,  with- 
out the  written  consent  of  the  parent,  master,  or 
guardian  of  such  minor ;  upon  any  justice  or  min- 
ister who  joins  persons  in  marriage  contrary  to 
those  provisions  of  the  statutes  which  regulate  it ; 
and  upon  any  other  party  who  attempts  to  solem- 
nize a  marriage  without  proper  authority  so  to  do. 

A  few  other  States  have  by  similar  legislative 
action  provided  that  marriages  shall  not  be  valid 
unless  performed  in  accordance  with  certain  defined 
statutory  requirements.  Such  provisions  cannot 
be  set  forth  at  length  in  these  pages,  but  may  read- 
ily be  found  by  consulting  the  statutes  themselves 
in  any  State,  provided  one  reads  very  carefully  and 
is  not  misled  by  general  expressions  into  regarding 
laws  as  prohibitory  which  are  in  reality  only  de- 
claratory or  mandatory.  It  is  sometimes  the  case 
however,  that  where  a  statute  may  not  appear,  on 


INFORMAL   MARRIAGES.  17 

the  face  of  it,  to  declare  all  marriages  void  which 
are  not  performed  in  accordance  with  its  provisions, 
such  a  construction  may  have  been  put  upon  it  by 
the  court,  and  a  reference  to  the  reports  of  judicial 
decisions  as  well  as  to  the  statutes  would  in  such 
case  be  necessary,  before  a  conclusion  as  to  the  law 
on  the  point  could  be  safely  arrived  at. 


CHAPTER  II. 

PROPERTY  RIGHTS. 
"  And  they  twain  shall  be  one  flesh." 

THE  maxim  quoted  above  is  undoubtedly  of 
highest  authority  and  time-honored  sanction,  but 
there  may  be  room  for  question  as  to  the  boun- 
daries by  which  this  unity  of  the  married  pair 
was  intended  to  be  limited.  As  the  physical, 
mental,  and  even  moral  life  of  each  of  the  two 
unmarried  individuals  continues  its  own  separate 
existence  after  the  two  are  joined  in  matrimony, 
however  greatly  it  may  be  affected  and  influenced 
by  the  union,  it  may  be  legitimately  doubted 
whether  their  legal  existence  should  become  so 
absolutely  blended  and  identified  by  marriage  as  to 
justify  the  doctrine  that  "  the  husband  and  wife 
are  in  law  but  one  person "  —  and  that  one, 
the  husband  !  This  theory  is  peculiar  to  the  Eng- 
lish common  •  law,  dating  from  feudal  times,  and 
having  its  rise  in  necessities  of  the  age.  In  earlier 
civilizations,  and  in  modern  ones  where  the  civil 
instead  of  the  common  law  has  prevailed,  hus- 
band and  wife  always  have  been  two  distinct  legal 


THE   COMMUNITY   SYSTEM.  19 

individuals,  each  of  whom  might  have  and  hold  sep- 
arate property,  be  bound  by  separate  contracts  and 
.debts,  and  sustain  separate  injuries  ;  might  sue  and 
be  sued,  and  make  any  agreement  with  each  other  to 
hold  their  property  in  common  or  in  partnership. 
This  doctrine  of  the  civil  law  was  brought  to  such 
portions  of  this  country  as  were  settled  by  French 
and  Spanish  colonies,  and  may  now  be  found  in  the 
States  which  have  grown  up  from  those  colonies, 
as  California,  Texas,  and  Louisiana,  in  the  "  com- 
munity "  system  of  property  which  there  prevails 
between  husband  and  wife.  Other  Territories  and 
States  in  near  proximity  to  these,  preferring  this 
doctrine  to  that  of  the  common  law,  have  adopted 
it  into  their  codes,  and  its  influence  has  been  grad- 
ually making  itself  felt  in  some  parts  of  the  middle 
West.  Thus  the  law  in  California  on  the  subject, 
briefly  stated,  is  as  follows  :  All  property  owned  by 
either  husband  or  wife  at  marriage,  and  all  ac- 
quired by  either  after  marriage,  by  gift,  inheritance, 
or  by  the  will  of  any  deceased  person,  together 
with  rents,  income,  and  profits  thereof,  constitutes 
the  separate  property  of  each.  All  acquired  during 
marriage  by  either  in  any  other  way  constitutes  the 
common  or  community  property  of  both.  The  hus- 
band has  entire  control  of  the  community  property 
during  his  life,  and  may  dispose  of  it  without  the 
wife's  consent,  but  not  so  as  to  defraud  her  of  her 


20  LAW   OF   HUSBAND    AND   WIFE. 

half-interest  in  the  proceeds ;  and  upon  his  death, 
the  widow  is  entitled  to  one  half  of  what  re- 
mains after  payment  of  community  debts  and  ex- 
penses of  administration.  With  such  restrictions 
as  always  exist  between  parties  in  confidential  re- 
lations, husband  and  wife  may  make  contracts  and 
conveyances  one  to  the  other,  and  suits  may  be 
brought  by  one  against  the  other  to  enforce  them. 
But  the  English  common  law  system  differs  very 
greatly  from  this.  At  marriage,  all  the  wife's  per- 
sonal property  goes  directly  and  absolutely  to  the 
husband,  and  the  old  common  law  rule  was  that  if 
he  died  without  leaving  it  to  her  by  his  will,  it  went 
to  his  heirs.  (It  must  be  remembered  that  in  many 
States  the  wife's  personal  property  does  not  now 
become  her  husband's ;  each  reader  must  consult 
the  Abstracts  of  Statutes  for  the  law  in  his  or  her 
own  State.)  If  the  wife  owns  real  estate  when  mar- 
ried, the  title  remains  in  her;  but  the  husband 
enters  into  immediate  control  of  it  by  the  common 
law,  all  the  rents  and  profits  become  his,  and  if  he 
survives  her,  he  retains  control  of  it  and  of  all 
which  may  have  come  into  her  possession  in  any 
way  during  the  marriage,  and  receives  the  rents 
and  profits  for  his  own  use  during  his  life,  and  only 
at  his  death  does  it  go  to  her  heirs.  This  right  of 
the  husband  in  the  wife's  realty,  called  his  estate 
by  the  curtesy,  only  accrues  to  him,  however,  if  a 


CURTESY   AND   DOWER.  21 

legitimate  child  is  born  alive  during  the  marriage. 
He  cannot  be  deprived  of  the  right  when  it  has  once 
accrued,  and  any  deed  or  mortgage  given  by  a 
wife  of  her  real  estate  either  before  or  after  the 
birth  of  a  child,  only  conveys  her  title,  subject  to 
the  husband's  right  of  curtesy,  unless  he  expressly 
relinquishes  it  by  himself  signing  the  instrument. 
It  is  said  that  this  right  originally  arose  because 
the  father  was  liable  for  the  support  of  the  chil- 
dren ;  but  whether  they  live  or  die,  or  whether  he 
supports  them  or  not,  his  estate  by  the  curtesy  is 
equally  sure.  One  other  class  of  property  remains 
to  be  considered  in  this  connection ;  namely,  the 
wife's  choses  in  action,  —  that  is,  claims  or  debts  due 
her.  These  become  the  husband's  only  if  he  reduces 
them  to  his  possession  ;  that  is,  collects  the  money 
due  on  them.  If  he  neglects  so  to  do,  on  his  death 
they  may  be  collected  by  the  wife,  and  are  hers. 

On  the  other  hand,  the  only  interest  which  the 
common  law  gives  a  wife  in  the  property  of  her 
husband  is  that  of  dower  in  his  real  property. 
This  dower  right  is  not  conditioned  on  the  birth  of 
a  child,  as  is  that  of  curtesy,  and  only  requires  a 
valid  marriage,  ownership  of  the  property  by  the 
husband  at  some  time  during  the  marriage,  and 
death  of  the  husband.  The  right  gives  to  the 
widow,  for  her  lifetime,  one  third  of  all  the  real 
property  which  her  husband  owned,  either  in  pos- 


22  LAW   OP    HUSBAND    AND    WIFE. 

session  or  the  right  to  possession  during  the  mar- 
riage. Therefore,  any  deed  or  mortgage  given 
by  a  husband  of  his  real  estate  only  conveys  an 
incomplete  title,  subject  to  his  wife's  right  of  dower, 
unless  she  also  signs  the  conveyance  expressly 
releasing  her  dower.  But  to  bind  herself  by  such 
a  signature,  she  must  be  twenty-one  years  of  age, 
except  in  a  few  States  where  a  woman  is  of  legal 
age  at  eighteen,  and  in  a  very  few  others  where  a 
wife  of  any  age  may  release  dower. 

Before  marriage,  however,  the  parties  may  bind 
themselves  by  an  ante-nuptial  contract,  by  which 
some  portion  or  all  of  the  woman's  property,  or  of 
the  man's  either,  is  transferred  to  a  trustee  to  hold 
in  trust  for  the  wife  during  the  marriage,  paying 
the  income  to  her  during  the  husband's  life,  and 
transferring  the  property  itself  to  her  after  the 
husband's  death.  By  any  such  arrangement  made 
prior  to  the  marriage  the  parties  will  be  bound ; 
but  if  it  be  made  subsequent  to  the  marriage,  it  is 
not  binding  on  either  party,  for  the  couple  being 
now  one  person  in  the  eye  of  the  law,  they  cannot 
contract  with  each  other;  the  husband  may  still, 
if  he  chooses  to  do  so,  convey  property  to  a  trustee 
for  his  wife's  use,  but  the  wife  cannot  compel  it  by 
virtue  of  any  promise  made  by  him  after  marriage. 
Thus  in  a  deed  of  land  by  the  husband  to  a  third 
person,  the  wife  may  release  her  dower  to  that 


WIFE'S  COMMON  LAW  DISABILITIES.  23 

third  person,  and  it  will  bind  her ;  but  if  she  release 
it  to  her  husband  himself  after  marriage,  however 
solemnly  and  under  seal,  she  is  not  bound  thereby, 
and  her  dower  right  still  remains,  if  she  chooses  to 
avail  herself  of  it. 

By  the  common  law  a  wife  can  neither  sell  nor 
give  away  any  personal  property  of  hers  or  of  her 
husband's  during  her  life,  because  it  is  no  longer 
hers  after  marriage,  but  his.  She  cannot  con- 
tract a  legal  debt  nor  bind  herself  by  any  kind  of 
agreement,  except  in  release  of  her  dower,  as  al- 
ready mentioned  ;  and  even  to  do  this  she  must  be 
examined  out  of  her  husband's  presence  by  the 
magistrate  before  whom  she  acknowledges  her  sig- 
nature as  to  whether  the  act  is  of  her  own  volition 
without  compulsion  from  her  husband.  She  cannot 
sue  or  be  sued  unless  the  husband  is  joined  with 
her  in  the  suit,  and  no  judgment  can  be  entered 
against  her ;  while  if  a  judgment  be  entered  in  her 
favor,  the  benefit  thereof  accrues  to  her  husband 
only.  She  cannot  make  a  will  at  common  law,  nor 
can  she  receive  a  legacy  (unless  it  is  given  to  trus- 
tees for  her  sole  and  separate  use)  ;  and  if  a  legacy 
be  paid  to  her,  the  executor  can  be  compelled  by 
the  husband  to  pay  it  over  again  to  him.  She 
cannot  act  as  executor,  administrator,  guardian,  or 
trustee,  unless  by  his  consent.  Since  the  husband 
and  wife  are  one  person,  contracts  or  gifts  between 


24  LAW   OF   HUSBAND    AND   WIFE. 

them  are  not  recognized  or  upheld  by  the  common 
law,  nor  can  they  enter  into  a  business  partnership; 
nor  can  they  testify  for  or  against  each  other  in  a 
civil  suit,  nor,  with  a  few  exceptions,  in  a  criminal 
proceeding. 

The  husband  becomes  immediately  liable  upon 
marriage  for  all  his  wife's  debts  contracted  previ- 
ously ;  but  after  marriage  he  is  only  liable  for  a 
certain  class  of  debts  contracted  by  her,  while  she 
is  not  liable  for  them  at  all.  This  power  of  the 
wife  to  bind  the  husband  by  debts  is  only  as  his 
agent,  and  is  so  important  a  subject  that  it  must 
be  considered  in  another  chapter  somewhat  in  de- 
tail ;  for  it  has  been  very  little  changed  or  affected 
even  by  modern  statutes. 

All  these  doctrines  of  the  common  law  concern- 
ing husband  and  wife  depend  upon  the  theory 
that  he,  and  he  only,  is  responsible  for  her  main- 
tenance and  that  of  their  children,  and  were  in- 
tended to  aid  him  therein.  He  is  also  responsible 
to  a  considerable  degree  for  wrong  actions  com- 
mitted by  her ;  and  it  was  in  consequence  of  this 
responsibility  that  the  old  law  gave  him  the  right 
of  correction  over  her,  permitting  him  to  chastise 
her  with  "  a  rod  no  larger  than  his  thumb,"  or  to 
imprison  her  if  he  deemed  it  necessary.  On  ac- 
count of  his  responsibility  for  the  maintenance  of 
the  family  also,  he  is  the  legal  guardian  of  their 


REMEDY    IN    EQUITY.  25 

children,  and  can  dispose  of  them  as  he  sees  fit, 
even  appointing  a  guardian  by  his  will  for  their 
unborn  child. 

Whether  these  provisions  of  the  common  law  by 
which  a  wife  was  reduced  to  a  legal  nonentity  was 
based  on  the  supposition  that  women  did  not  know 
enough  to  be  trusted  to  act  for  themselves,  or, 
more  probably,  on  the  theory  that  in  the  marriage 
relation  absolute  supremacy  and  power  in  all 
things  must  be  given  to  one  only,  need  not  be  dis- 
cussed here  ;  for  it  is  my  intention  only  to  state 
legal  facts,  without  comment  or  any  attempt  to 
investigate  causes.  But  that  even  in  earliest  times 
the  scheme  was  found  to  be  very  faulty  and  full  of 
hardships  is  shown  by  the  fact  that  the  courts  of 
equity  —  which  were  not  altogether  bound  by  the 
rules  of  the  common  law  —  set  to  work  to  reme'dy 
the  faults  and  ease  the  hardships  of  the  law  con- 
cerning husband  and  wife  almost  as  soon  as  the 
law  itself  was  formulated.  Thus  a  wife  might 
have  an  equitable  separate  estate ;  and  in  many 
cases  contracts  and  gifts  between  husband  and 
wife  which  could  not  stand  in  the  common-law 
courts  were  upheld  in  the  courts  of  equity.  The 
prevailing  doctrines  were  of  course  those  of  the 
common  law,  and  it  would  only  confuse  if  I  were 
to  attempt  to  set  forth  the  equitable  doctrines  here 
at  any  length,  or  to  show  the  finer  points  of  dis- 
tinction between  the  two  systems  of  law  on  the 


26  LAW   OP   HUSBAND   AND    WIFE. 

subject ;  but  as  some  States  still  give  married 
women  only  the  power  to  hold  and  manage  an 
equitable  separate  estate,  and  the  abstracts  of  stat- 
utes in  these  States  will  necessarily  refer  thereto, 
I  will  try  to  give  some  idea  of  what  the  equitable 
separate  estate  is  in  the  next  chapter. 

In  some  States  —  and  the  number  is  constantly 
increasing  —  curtesy  and  dower  have  been  abol- 
ished entirely ;  and  in  their  place  statutes  have 
given  to  the  widow  or  widower  a  certain  share  in 
the  estate  of  the  deceased  spouse,  in  case  he  or  she 
has  died  intestate.  These  statutes,  as  also  those 
in  other  States  which  have  added  further  pro- 
visions for  widows  and  widowers  while  retaining 
curtesy  and  dower,  will  be  given  in  condensed 
form  in  the  abstracts  in  the  latter  part  of  this 
volume. 

A  different  provision  from  that  which  is  fixed  by 
law  may  be  made  for  the  survivor  by  the  will  of  the 
deceased  in  any  State  or  by  the  common  law ;  but 
generally  a  widow  must  elect  whether  she  will  take 
such  provision  or  take  her  dower  or  statutory 
share.  Both  cannot  be  taken  unless  the  will  dis- 
tinctly shows  such  an  intention.  But  the  same 
restriction  as  to  election  between  curtesy  and  the 
provision  made  by  a  wife's  will  does  not  seem  to 
prevail  concerning  widowers,  who  it  would  appear 
may  take  both,  unless  expressly  forbidden  by  stat- 
ute Or  by  the  will  itself. 


CHAPTER  III. 

WIFE'S   SEPARATE   ESTATE. 

"Equity  is  the  savior  of  woman." 

» 

IT  was  stated  in  the  last  chapter  that  the  com- 
mon law  of  England  forbade  a  married  woman 
to  hold  or  manage  property  in  her  own  name,  to 
make  contracts,  sue  or  be  sued,  or  to  claim  her 
earnings.  It  was  also  stated  that  the  courts  of 
equity,  or  chancery,  were  far  less  stringent,  and 
recognized  the  power  of  a  married  woman  to  have 
and  to  deal  with  an  equitable  separate  estate,  pro- 
viding it  were  settled  upon  her  in  such  a  way  that 
her  husband  could  not  legally  claim  it..  Equity 
also  allowed  her  to  make  contracts,  and  to  sue  and 
be  sued  in  relation  to  such  separate  equitable  es- 
tate, even  in  some  cases  to  sue  her  husband  concern- 
ing it,  and  to  give  testimony  in  regard  to  private 
conversations  which  had  taken  place  between  them 
on  the  subject,  thus  acknowledging  to  a  very  re- 
markable degree  the  independent  identity  of  the 
wife.  And  in  quite  a  number  of  our  States,  the 
English  rule  in  this  respect  has  been  followed  to  a 
greater  or  lesser  extent,  many  of  them  recognizing 


28  LAW   OP   HUSBAND   AND   WIFE. 

a  wife's  power  to  deal  with  an  equitable   estate 
only. 

This  kind  of  estate  is  created  by  virtue  of  the 
doctrine  of  trusts.  One  may  own  property  out- 
right, in  his  own  possession,  to  dispose  of  as  he 
thinks  fit,  or  some  other  person  called  a  trustee 
may  have  the  legal  title  to  the  property,  which  he 
holds  and  manages,  paying  the  income  thereof  to 
the  person  whom  the  property  is  really  intended  to 
benefit.  Thus  this  latter  person  has  the  enjoyment 
of  the  estate,  but  cannot  sell  it  or  dispose  of  the 
principal  in  any  way.  In  order  to  secure  to  a  mar- 
ried woman  the  certainty  of  an  independent  income 
which  her  husband  cannot  claim,  a  trust  may  be 
created  for  her  benefit,  by  a  relative  or  by  her 
husband  himself;  or  even  she  can  create  a  trust 
for  her  own  benefit,  provided  she  does  so  before 
entering  into  the  marriage  relation.  Her  powers 
over  this  estate  depend  entirely  on  the  terms  of  the 
trust  itself,  —  that  is,  of  the  instrument  or  paper  by 
which  the  trust  is  established,  —  and  these  powers 
and  rights  may  be  far  beyond  those  which  she 
could  have  at  common  law ;  but  they  can  be  en- 
forced only  in  courts  of  equity.  She  can  contract 
debts  binding  upon  this  equitable  estate,  and  can 
make  a  will,  or  "  appointment,"  as  it  is  called,  dis- 
posing of  it  at  her  death,  even  where  otherwise  she 
could  make  no  will. 


MARRIAGE   SETTLEMENTS.  29 

I  think  this  brief  explanation  will  give  a  sufficient 
idea  of  the  subject  to  enable  those  who  may  refer 
to  the  abstracts  of  a  State  which  recognizes  a  wife's 
power  to  deal  only  with  a  separate  equitable  estate 
to  realize  that  this  refers  to  property  held  by  a 
trustee  for  her  use.  But  the  niceties  of  the  dis- 
tinctions and  contradictions  between  the  two  sys- 
tems, that  of  the  common  law  and  that  of  equity, 
have  made  the  law  of  husband  and  wife  a  most 
complicated  and  difficult  one ;  and  the  passage  of 
innumerable  modern  statutes  on  the  subject,  while 
they  have  greatly  relieved  the  hardships  of  the 
legal  condition  of  both  husband  and  wife,  have  by 
no  means  lessened  those  of  counsel,  wh,ose  business 
it  is  to  ascertain  just  what  that  condition  is. 

Another  time-honored  custom  in  England,  among 
people  of  means,  has  been  to  give  to  the  wife  a  cer- 
tainty of  pecuniary  independence  by  "  marriage 
settlements,"  which,  being  drawn  up  by  the  lawyers 
representing  the  families  of  bride  and  groom,  were 
signed  and  delivered  before  marriage,  and  gave  a 
certain  amount  of  money  or  property  to  trustees 
for  the  use  of  the  wife.  One  feature  of  these  set- 
tlements common  among  the  wealthier  classes  is 
that  of  "  pin-money,"  a  certain  amount  being  given 
her  expressly  for  the  purchase  of  dress  and  orna- 
ment. Sometimes  this  "  pin-money "  was  of  no 
inconsiderable  amount,  as  in  one  case  where  thir- 


80  LAW   OF   HUSBAND    AND   WIFE. 

teen  thousand  pounds  a  year  was  secured  to  a  wife 
as  pin-money. 

But  in  our  country  the  custom  of  marriage  set- 
tlements has  never  become  common,  even  among 
the  moneyed  class,  and  pin-money  has  been  practi- 
cally unknown.  In  some  of  our  States,  the  "  equi- 
table separate  estate"  already  referred  to  is  the 
only  way  by  which  a  wife  can  hold  any  property  of 
her  own.  But  in  the  great  majority  of  them, 
statutes  have  given  to  married  women  certain 
rights  of  acquiring  and  powers  of  holding  and 
managing  property,  with  independent  ability  to  make 
contracts  which  will  be  recognized  by  all  the  courts 
instead  of  in  equity  only.  During  the  past  forty 
years,  the  legislatures  all  over  the  country  have 
been  busy  with  the  subject ;  and  scarcely  a  session 
closes  in  any  State  without  the  passage  of  some 
act  intended  for  the  improvement  of  the  property 
rights  of  married  women.  The  result  so  far  is  that 
in  many  States  of  our  country,  married  women 
have  nearly  the  same  powers  of  holding  and  con- 
trolling property  that  married  men  have,  while  in 
a  few  States  the  rights  of  husband  and  wife  in 
this  respect  are  distinctly  stated  to  be  identical. 

In  Massachusetts,  all  property  of  whatever  kind 
owned  by  a  woman  at  marriage,  and  all  which 
comes  to  her  after  marriage  in  any  way  except 
from  her  husband,  is  her  separate  property,  free 


MASSACHUSETTS^  WIVES.  31 

from  his  control  or  debts.  From  her  husband 
directly  she  can  only  receive  as  gifts  wearing  ap- 
parel and  personal  ornaments,  and  other  articles 
for  her  personal  use,  to  the  value  of  two  thousand 
dollars  ;  and  this  only  if  it  is  not  in  fraud  of  the 
claims  of  previous  creditors.  Other  personal  prop- 
erty found  in  her  possession,  and  to  which  she 
cannot  prove  her  title,  is  presumed  to  belong  to 
her  husband.  She  has  entire  control  of  all  her 
property,  and  may  dispose  of  it  during  her  life  as 
she  sees  fit,  except  that  she  cannot  convey  her  real 
estate  without  his  signature  so  as  to  deprive  him 
of  his  curtesy  or  other  life  interest  therein,  any 
more  than  he  can  convey  his  realty  without  her 
signature  so  as  to  deprive  her  of  dower.  But  she 
cannot  by  her  will  deprive  him  of  his  curtesy  or 
other  interest  in  her'  real  estate,  or  of  more  than 
one  half  her  personal  estate,  unless  he  consents  to 
the  will.  All  her  earnings  for  labor  performed  by 
her  for  any  person  other  than  her  husband  or  her 
children  during  her  husband's  life,  are  hers  alone, 
and  may  be  sued  for  and  collected  by  her  in  her 
own  name.  She  may  sue  and  be  sued  alone  on  all 
matters  in  which  her  claims  or  her  debts  only  are 
concerned  ;  and  she  may  make  contracts  of  all 
kinds  which  will  bind  her  and  her  property  only. 
But  with  her  husband  she  cannot  make  any  kind 
of  binding  contract ;  and  if  she  borrows  money 


32  LAW   OF    HUSBAND    AND   WIPE. 

from  him  to  use  in  her  business,  or  if  he  borrows 
from  her,  —  which  is  perhaps  more  often  done,  — 
neither  can  recover  the  money  so  borrowed  from 
the  property  of  the  other,  even  after  the  latter's 
death  or  insolvency.  However  much  the  adminis- 
trator of  the  deceased  husband,  or  the  assignee  of 
the  insolvent  husband,  may  desire  to  recognize  the 
wife's  claim  for  payment  out  of  the  estate,  he  can- 
not do  so  under  the  law  as  it  now  stands.  Her 
claim  is  absolutely  void  both  in  the  law  courts  and 
those  of  equity  in  our  State. 

It  is  true  that  property  belonging  at  one  time  to 
the  husband  is  often  found  later  belonging  to  the 
wife  ;  but  this  is  done  (if  legal  at  all)  by  the  inter- 
vention of  a  third  person,  to  whom  the  husband 
conveys  the  property,  and  who  in  turn  conveys  it 
to  the  wife. 

So  a  wife,  in  Massachusetts,  may  enter  into  bind- 
ing partnership  business  relations  with  any  person 
except  her  husband,  but  not  with  him.  But  if  she 
carries  on  business  in  her  own  name,  or  in  partner- 
ship with  others,  she  is  required  to  file  a  "  married 
woman's  certificate "  in  the  clerk's  office  of  the 
place  where  the  business  is  conducted,  so  that  the 
public  may  not  be  misled  into  giving  her  credit  on 
her  husband's  account,  supposing  the  business  to 
be  his.  If  she  does  not  file  such  a  certificate,  her 
stock  in  trade  mav  become  liable  for  her  husband's 


WIFE'S   ANTE-NUPTIAL    DEBTS.  33 

debts.  On  the  other  hand,  if  her  husband  fears 
that  he  may  be  held  responsible  for  her  business 
debts,  he  may  file  a  certificate  himself,  and  thereby 
be  exempted  from  liability,  for  these  certificates  are 
open  to  public  inspection,  and  people  are  bound 
to  inform  themselves  on  the  matter  before  giving 
credit. 

In  many  States  a  married  woman  is  allowed  to 
trade  for  her  own  exclusive  benefit  only  in  case 
her  husband  consents  in  writing  with  certain  stip- 
ulated formalities. 

At  common  law,  the  husband  who  took  all  his 
wife's  personal  property  as  his  own  at  the  moment 
of  marriage  took  also  all  her  debts  which  she  owed 
before  marriage,  and  was  obliged  to  pay  them. 
But  as  the  possession  of  her  property  has  been 
given  to  the  wife,  so  the  responsibility  for  her  ante- 
nuptial debts  has  been  removed  from  the  husband, 
she  and  her  property  alone  being  liable  for  them 
now  almost  everywhere. 

In  general  the  husband's  obligation  to  maintain 
his  wife  and  children  —  that  is,  to  supply  them 
with  necessaries  of  life  suitable  to  his  rank  and 
condition  —  remains  the  same,  notwithstanding  the 
possession  by  his  wife  of  property  of  her  own  ;  and 
no  claims  for  such  necessaries  can  be  enforced 
against  the  estate  of  the  wife  unless  she  expressly 
makes  herself  and  her  estate  responsible  for  them 

3 


34  LAW   OF    HUSBAND    AND   WIFE. 

at  the  time  when  the  contract  is  entered  into,  and 
in  some  States,  not  even  then.  So  if  a  wife  is 
wealthy  and  a  husband  poor,  the  family  expenses 
cannot  be  claimed  from  the  wife.  Even  the  "  poor 
laws,"  which  require  parents  and  children,  grand- 
parents and  grandchildren,  being  of  sufficient  abil- 
ity, to  support  each  other  in  case  of  necessity,  do 
not  apply  to  wives.  This  state  of  the  law  has  led 
to  the  suggestion  —  facetious,  no  doubt  —  that  a 
"  pauper  husband's  relief  bill "  should  be  intro- 
duced at  the  next  session  of  our  Legislature. 

But  in  a  few  Western  States,  where  the  right  of 
the  mother  to  claim  and  control  her  minor  chil- 
dren and  to  collect  their  wages  is  exactly  equal 
to  that  of  the  father,  she  and  her  property  are 
also  made  equally  responsible  with  the  father  for 
their  support  and  education,  and  in  some  cases  for 
the  support  of  the  family,  which  presumably  in- 
cludes the  husband.  In  some  Western  States  also 
husband  and  wife  may  contract  with  each  other 
and  be  bound  thereby  as  legally  as  though  they 
were  unmarried,  and  may  also  enter  into  a  busi- 
ness partnership  together,  it  being  no  unusual 
thing  to  see  a  firm  consisting  of  husband  and  wife. 
Little  by  little  these  innovations  on  the  old  doc- 
trines of  the  common  law,  which  reduced  a  wife  to 
a  legal  nonentity,  are  being  removed,  and  the  lib- 
eral doctrines  of  the  West,  which  could  more  easily 


WIFE'S   SEPARATE   ESTATE.  35 

be  introduced  into  the  new  constitutions  and  stat- 
utes of  young  States,  are  creeping  eastward  and 
taking  firm  root  in  our  old  soil  ;  while  in  Eng- 
land the  Married  Women's  Property  Act,  passed 
a  few  years  since,  has  entirely  swept  away  the 
mass  of  old  legal  learning  and  complicated  de- 
cisions, practically  giving  to  married  women  en- 
tire independence  in  all  matters  of  property  and 
business. 


CHAPTER  IV. 

WIFE'S  SUPPORT.  —  SEPARATE  MAINTENANCE. 

"  With  all  my  worldly  goods  I  thee  endow." 

EVERYBODY  knows  that  a  husband  is  bound  by 
law  to  support  his  wife,  and  in  some  cases  to  pay 
certain  debts  contracted  by  her ;  but  there  is  much 
confusion  in  the  popular  idea  which  prevails  as  to 
the  kind  and  extent  of  debts  of  her  contraction 
which  he  can  be  compelled  to  pay,  and  very  few 
seem  to  realize  that  it  is  not  in  her  capacity  as  wife 
that  she  may  charge  him  with  her  debts  at  all,  but 
in  her  capacity  as  agent.  Not  as  a  wife,  because 
if  he  chooses  to  provide  for  her  necessities  in  any 
specific  way,  and  actually  does  so  provide,  and  for- 
bids her  to  contract  debts,  and  gives  notice  to 
dealers  and  others  that  he  has  forbidden  her  to 
buy  on  his  credit,  then,  if  they  do  trust  her,  they 
cannot  claim  payment  from  her  husband.  If  after 
such  warning  from  the  husband,  any  one  supplies 
necessaries  to  a  wife,  he  can  only  charge  them  to 
the  husband  in  case  it  can  be  proved  that  the  hus- 
band has  failed  to  provide  for  her  support  in  a 
manner  reasonably  consistent  with  his  station  in 


WIFE  AS  HUSBAND'S  AGENT.  37 

life.  In.  such  case,  where  the  husband  neglects  or 
refuses  so  to  provide  for  her,  the  wife  becomes  his 
agent  to  procure  necessaries  on  his  credit.  The 
husband  cannot  take  this  agency  away  from  his 
wife,  though  she  may  lose  it  by  her  own  miscon- 
duct, as  will  be  shown  later. 

Except  for  this  agency  to  purchase  necessaries 
when  not  provided  by  her  husband,  the  wife  can 
only  become  her  husband's  agent  in  the  same  man- 
ner as  any  individual  may  become  the  agent  of 
another, —  that  is,  by  actual  specific  appointment, 
or  by  inference  from  repeated  acts  of  agency  sanc- 
tioned by  the  husband.  When  a  man  goes  away 
and  leaves  a  power  of  attorney  with  his  wife  to 
transact-all  business,  or  certain  classes  of  business, 
for  him  and  in  his  name,  this  is  a  specific  appoint- 
ment of  her  as  agent ;  and  so  it  is,  if  he  should  go 
with  her  to  a  certain  dealer  and  authorize  him  to 
trust  her  on  his  account  for  purchases,  either  to 
a  definite  or  indefinite  amount,  or  if  he  give  her 
a  letter  to  the  dealer  to  that  effect.  But  if  the 
amount  was  specified,  the  dealer  could  not  charge 
the  husband  with  purchases  above  that  amount,  — 
unless  in  the  case  already  noted  of  failure  of  the 
husband  to  supply  her  with  necessaries. 

The  agency  which  arises  from  former  acts  of  the 
wife  sanctioned  by  the  husband  may  be  illustrated 
by  the  familiar  custom  of  purchases  made  by  the 


38  LAW   OF   HUSBAND    AND    WIFE. 

wife  from  grocers  and  butchers  and  other  dealers 
in  domestic  commodities.  The  wife  has  purchased 
and  the  husband  has  paid  the  bills  more  or  less 
frequently  ;  and  by  so  doing,  he  has  acknowledged 
her  as  his  agent  to  make  purchases  of  the  class, 
and  the  dealer  is  justified  in  considering  the  rela- 
tion to  be  continuing  until  he  shall  receive  notice 
from  the  husband  to  the  contrary.  And  it  has 
been  held  that  a  printed  notice  to  this  effect  in  a 
newspaper  was  insufficient  in  the  case  of  a  dealer 
with  whom  the  wife  had  formerly  dealt  by  her  hus- 
band's authority,  where  the  dealer  failed  to  see  the 
printed  notice,  and  had  received  no  personal  notice. 
And  in  any  case,  a  printed  newspaper  notice,  or  a 
personal  notice,  written  or  oral,  by  the  husband,  that 
he  will  not  pay  debts  of  his  wife's  contraction,  will 
not  relieve  him  from  liability  on  such  debts  for 
suitable  necessaries,  if  it  can  be  proved  that  he 
does  not  provide  for  her  himself  in  some  other 
way,  unless  she  is  living  apart  from  him  by  her 
own  fault. 

It  must  be  understood  that  a  dealer  would  also 
be  justified  in  recognizing  a  servant,  a  child,  a  re- 
lation, or  even  a  stranger,  as  the  agent  of  the  same 
man,  if  he  should  pay  bills  contracted  by  such  per- 
son, and  give  no  notice  of  the  discontinuance  of 
the  agency  thus  established.  This  presumption 
of  agency  on  the  part  of  a  person  other  than  a 


WHEN   WIFE   LEAVES   HER   HUSBAND.  39 

wife  would  not  be  so  easily  raised  in  the  first  place, 
however ;  for  in  the  absence  of  any  information  or 
instructions  from  the  husband  not  to  furnish  or- 
dinary family  supplies  to  his  wife  on  his  credit, 
the  presumption  that  she  has  his  consent  to  make 
such  purchases  as  his  agent  is  always  exceedingly 
strong,  'and  may  be  strengthened  still  more  by 
certain  facts,  —  as,  for  instance,  his  frequent  or 
continued  absence  from  home. 

But,  on  the  other  hand,  if  a  dealer  knows  that 
the  wife  has  left  her  husband's  house  and  is  living 
apart  from  him,  the  presumption  of  her  agency  to 
purchase  family  necessaries  may  be  weakened,  and 
the  dealer  must  be  on  his  guard.  For  if  she  leaves 
home  unjustifiably,  she  carries  no  agency  with  her, 
and  her  husband  is  not  bound  to  pay  even  for 
necessaries  of  life  that  may  be  furnished  her.  But 
if  she  leaves  him  for  just  cause,  the  agency  con- 
tinues, and  he  is  liable  for  debts  for  necessaries  of 
her  contraction,  —  if  she  contracts  them  on  his 
credit;  for  if  a  wife,  either  living  with  or  apart 
from  her  husband,  contracts  debts  in  her  own  name 
and  the  charges  are  made  on  the  dealer's  books 
against  herself,  then  she,  and  not  her  husband,  is 
liable  for  their  payment.  But  if  upon  separation 
her  husband  makes  her  an  adequate  allowance,  her 
authority  to  bind  him  by  debts  ceases.  So,  as  is 
said  above,  if  any  person  knows  that  the  wife  is 


40  LAW    OF    HUSBAND    AND   WIFE. 

living  apart  from  her  husband,  he  is  put  on  his 
guard  and  must  ascertain  that  she  has  left  home 
justifiably,  and  that  she  is  not  in  receipt  of  a  suffi- 
cient allowance  or  in  any  other  way  supplied  by 
him  with  the  necessaries  of  life,  before  he  can 
safely  give  her  credit  with  any  fair  prospect  of 
being  able  to  collect  his  claim  from  the  husband 
should  it  be  disputed.  Of  course  this  applies  to 
claims  for  board,  lodging,  or  medical  attendance 
furnished  the  wife,  as  well  as  to  those  of  dealers. 

It  must  be  remembered  that  it  is  only  claims  for 
"  necessaries "  which  can  in  any  case  be  collected 
from  the  husband  when  purchased  by  the  wife  (un- 
less by  special  authority  from  him  to  make  other 
purchases),  and  in  reasonable  accordance  with  the 
style  of  life  which  the  husband  has  chosen.  For 
the  law  makes  him  the  arbiter  not  only  of  the  place 
where  the  family  shall  live,  but  of  the  style  of  liv- 
ing ;  and  unless  the  wife  can  prove  that  she  actually 
suffers  in  health  as  the  result  of  his  miserly  habits, 
and  that  he  has  sufficient  means  to  live  more  com- 
fortably, she  cannot  be  heard  in  complaint.  But 
the  manner  of  his  own  life  may  be  taken  somewhat 
into  account,  and  if  he  lives  in  expensive  fashion 
himself,  he  probably  could  not  compel  his  wife  to 
live  in  a  mean  or  poor  way.  It  is  very  clear,  how- 
ever, that  a  wife's  general  agency  to  make  pur- 
chases on  her  husband's  credit  stops  at  necessaries, 


CREDITOR   MUST   PROVE   WIFE'S   DESTITUTION.       41 

and  does  not  extend  to  luxuries.  Sometimes  it  is 
not  easy  to  draw  the  line  of  distinction  between 
the  two  classes  thus  designated,  but  it  is  plain  that 
in  the  English  case  where  the  wife  of  a  man  whose 
income  was  one  thousand  pounds  a  year  bought 
jewelry  within  six  months  to  the  value  of  five 
hundred  pounds,  the  jeweller  could  not  collect  his 
bill  from  the  husband. 

Now  the  burden  of  proof  is  on  the  creditor  to 
show  the  facts  from  which  arises  the  presumption 
of  authority  on  the  part  of  the  wife  to  bind  her  hus- 
band by  purchases  as  his  agent.  That  is,  the  board- 
ing-house keeper,  grocer,  dry-goods  dealer,  or  other 
person  who  has  given  a  wife  credit  on  her  husband's 
account  without  special  authority  from  the  latter 
to  do  so,  and  who  sues  him  on  the  claim,  must 
affirmatively  prove  as  a  part  of  his  case,  either  that 
the  wife  was  actually  living  with  her  husband,  and 
that  the  credit  was  for  family  supplies  suitable  to 
his  style  of  living,  or  that  she  was  living  apart 
from  him  justifiably,  without  adequate  provision 
from  him  for  the  maintenance  of  life,  and  that  the 
supplies  were  reasonable  in  quantity  and  quality. 
And  it  is  sometimes  a  difficult  matter  for  one  who 
is  not  specially  familiar  with  all  the  circumstances 
of  a  separation  between  a  married  pair  to  ascertain 
these  facts ;  and  there  is  in  consequence  a  very  nat- 
ural reluctance  to  supply  purchases  on  the  has- 


42  LAW   OF   HUSBAND   AND   WIFE. 

band's  credit  to  a  wife  living  apart  from  him,  and 
much  hardship  might  thus  be  imposed  on  a  per- 
fectly innocent  wife  who  is  compelled  to  leave  her 
husband's  roof  as  the  result  of  his  misconduct,  or 
who  is  deliberately  abandoned  by  him.  To  obviate 
these  difficulties,  a  law  was  passed  in  Massachusetts 
fourteen  years  ago,  which  after  some  slight  changes 
by  later  legislation,  now  reads  as  follows  :  — 

"When  a  husband  fails,  without  just  cause,  to  fur- 
nish suitable  support  for  his  wife,  or  has  deserted  her, 
or  when  the  wife,  for  justifiable  cause,  is  actually  living 
apart  from  her  husband,  the  Probate  Court  may,  by  its 
order  on  the  petition  of  the  wife,  or  if  she  is  insane, 
on  the  petition  of  the  guardian  or  next  friend,  prohibit 
the  husband  from  imposing  any  restraint  on  her  per- 
sonal liberty  for  such  time  as  the  court  shall  in  such 
order  direct,  or  until  the  further  order  of  the  court 
thereon ;  and  the  court  may,  upon  the  application  of 
the  husband  or  wife  or  of  her  guardian,  make  such 
further  order  as  it  deems  expedient  concerning  the 
support  of  the  wife  and  the  care,  custody,  and  mainte- 
nance of  the  minor  children  of  the  parties,  and  may 
determine  with  which  of  their  parents  the  children, 
or  any  of  them,  shall  remain  ;  and  may  from  time  to 
time,  afterwards,  on  a  similar  application,  revise  and 
alter  such  order,  or  make  a  new  order  or  decree,  as 
the  circumstances  of  the  parents,  or  the  benefit  of  the 
children  may  require."  1 

1  Public  Statutes,  Massachusetts,  chap.  147,  §  33. 


SEPARATE  MAINTENANCE   IN   MASSACHUSETTS.      43 

This  proceeding  in  the  Probate  Court  for  an 
order  of  separate  maintenance  and  custody  of  chil- 
dren is  altogether  different  from  an  application 
for  divorce,  as  will  be  readily  seen,  and  is  meant 
to  cover  the  cases  of  unfortunate  wives  who  can- 
not remain  with  their  husbands,  but  who  do  not 
wish  to  break  the  marriage  bond  entirely,  either  by 
reason  of  religious  scruples  against  divorce,  or 
because  of  hope  that  the  separation  may  be  only 
temporary,  or  for  lack  of  the  technical  grounds 
upon  which  to  base  a  libel  for  divorce.  Thus  di- 
vorce for  the  cause  of  desertion  is  given  only 
when  the  desertion  continues  unbroken  for  three 
years  ;  but  in  the  meantime  the  recently  deserted 
wife  may  seek  the  legal  custody  of  her  children, 
and  an  allowance  for  her  and  their  maintenance 
under  the  statute  given  above.  An  attachment 
may  be  placed  on  the  property  of  the  husband  to 
secure  his  compliance  with  the  order  of  the  court ; 
and  other  means  may  also  be  taken  to  compel  pay- 
ment by  him  of  the  sum  or  sums  which  the  judge 
may  order  him  to  pay  his  wife  for  her  maintenance 
and  that  of  children  intrusted, by  the  court  to  her 
care.  Usually  the  order  is  for  the  immediate  pay- 
ment of  a  certain  sum  proportioned  somewhat  to 
the  means  of  the  husband,  intended  to  cover  the 
expenses  of  the  wife's  application  to  the  court,  and 
subsequent  periodical  payments,  weekly,  monthly, 
or  quarterly  as  the  case  may  be. 


44  LAW   OF   HUSBAND   AND   WIFE. 

In  many  other  States  there  are  provisions  for 
the  maintenance  of  deserted  wives  without  divorce, 
which  are  more  or  less  helpful  and  appropriate, 
and  most  of  these  will  be  found  by  reference  to  the 
Abstracts  of  Statutes  in  the  latter  part  of  this 
volume,  under  the  title  "  Divorce."  < 


CHAPTER  Y. 

CUSTODY  OF  CHILDREN. 
"  Give  her  the  child,  she  is  the  mother  thereof.1' 

MAERIAGE  is  something  more  than  a  contract ; 
for  other  rights  than  those  of  the  parties  to  it,  and 
other  interests  than  those  of  the  public  at  large, 
are  concerned.  It  is  an  institution  upon  which  not 
the  marital  only,  but  the  family  relation  is  depend- 
ent —  the  life,  education,  and  well-being  of  the 
children  whom  it  brings  into  the  world.  And  here 
is  just  the  point  of  greatest  difficulty  in  attempting 
legislation  on  the  subject.  It  is  so  hard  to  tell 
what  will  be  best  for  'the  children.  And  the  uni- 
versal policy  of  the  law  in  this  country  is  to  con- 
sider the  interest  of  the  children  themselves  as 
paramount  to  the  interest  or  the  abstract  rights  of 
either  of  the  parents,  whenever  any  question  arises 
as  to  their  custody.  Indeed,  the  common  law  re- 
cognizes no  abstract  right,  as  such,  in  the  parent  to 
have  the  custody  of  children  —  not  even  in  the 
father.  In  the  leading  English  case  on  the  subject, 
Wellesley  v.  The  Duke  of  Beaufort,  where  the  chil- 
dren were  taken  from  a  father  who  was  living  in 


46  LAW   OF   HUSBAND    AND    WIFE. 

adultery,  and  which  went  up  on  appeal  to  the 
House  of  Lords,  Lord  Redesdale,  in  the  course  of 
his  opinion  before  the  House  of  Lords,  declared 
emphatically  that  paternal  power  is  only  in  the 
nature  of  a  trust  reposed  in  the  father,  for  motives 
of  public  policy.  He  said,  "  Look  at  all  the  elemen- 
tary writings  on  the  subject ;  they  say  that  a  father 
is  intrusted  with  the  care  of  his  children  ;  that  he 
is  intrusted  with  it  for  this  reason :  because  it  is 
supposed  his  natural  affection  would  make  him  the 
most  proper  person  to  discharge  the  trust." 

But  though  theroretically  based  on  this  principle 
of  public  policy,  rather  than  the  abstract  individual 
right  of  the  parent,  the  law  as  administered  became 
practically  one  of  the  most  arbitrary  right,  over 
which  the  courts  exercised  so  little  control  (for 
they  had  the  right  of  control  if  they  would  but  have 
used  it),  that  in  another  English  case,  Rex  v. 
G-reenhill,  the  father  was  allowed  to  take  his  chil- 
dren from  his  blameless  wife  and  place  them  in 
charge  of  a  woman  with  whom  he  cohabited.  This 
infamous  case,  which  has  been  repeatedly  repudi- 
ated by  the  courts  of  the  United  States  as  bad  law, 
hastened  the  passage  of  the  English  statute  in  1839, 
which  is  known  as  Justice  Talfourd's  Act.  Until 
this  time  the  mother's  claim  to  the  custody  of  her 
children  had  not  been  recognized  at  all ;  and  by  this 
act  the  father's  claim  was  still  recognized  as  para- 


WHAT   IS   BEST   FOR   THE   CHILD  ?  47 

mount,  but  the  court  was  authorized  to  deprive  him 
of  it  when  he  should  fail  in  his  marital  duties  to 
his  wife,  and  when  the  interests  of  the  children 
justified  their  being  placed  in  other  custody. 

But  in  our  country  the  courts,  especially  courts 
of  equity,  have  always  had  the  power  in  their 
discretion,  to  vest  the  custody  of  children  in  either 
parent,  or  to  take  it  away  from  both,  having 
always  the  best  interests  of  the  children  them- 
selves chiefly  in  view.  The  tendency  has  always 
been,  however,  it  must  be  admitted,  to  favor  the 
paternal  rather  than  the  maternal  claims,  and  this 
not  only  because  of  the  strong,  half-unconscious 
weight  which  long  custom  brings  to  bear  on  a 
judge's  mind,  but  also  because  it  is  so  generally  the 
case  that  the  money,  property,  income,  means  of 
support  and  education  are  in  the  father's  possession 
rather  than  the  mother's.  When  it  is  perfectly 
clear  that  the  father  is  a  bad  man,  whose  influence 
over  the  children  would  naturally  be  bad,  and  that 
the  mother's  influence  and  character  is  good,  then 
no  court  will  hesitate  to  give  their  custody  to  the 
mother,  with  an  order  on  the  father  to  make  her 
certain  reasonable  payments  of  money  for  their 
support.  But  even  then  every  judge  knows  that 
there  is  a  very  considerable  chance  of  the  father's 
evading  compliance  with  the  order  of  the  court  by 
secretly  taking  himself  and  his  property  out  of  its 


48  LAW   OF    HUSBAND   AND   WIFE. 

jurisdiction,  when  the  children  would  be  left  de- 
pendent on  their  mother's  unaided  efforts.  Of 
course  this  is  much  better  for  them  than  to  be  with 
a  bad  father,  however  plenty  his  money  may  be. 
But  in  cases  where  the  evidence  concerning  the  fa- 
ther's character  is  conflicting  and  doubtful,  it  is  not 
so  easy  to  decide  ;  and  where,  added  to  this,  there 
is  evidence  tending  to  throw  doubt  on  the  character 
of  the  mother  also,  it  is  often  a  very  difficult  matter 
for  a  conscientious  magistrate,  having  always  pri- 
marily in  view  the  best  good  of  the  children,  to 
make  an  order  for  their  custody  and  support.  If 
it  were  merely  a  question  of  the  comparative  rights 
of  the  father  and  the  mother,  the  problem  would 
be  simpler ;  for  then  it  would  be  only  a  weighing 
of  the  evidence  for  and  against  each,  and  an  award- 
ing of  the  children  to  him  or  her  whose  scale  of 
errors  tipped  lightest  and  of  merits  heaviest. 

I  had  two  cases  before  the  Probate  Court  recently, 
of  applications  by  wives  against  their  husbands  for 
separate  maintenance  and  custody  of  children,  in 
which  exactly  this  problem  arose.  In  one  of  them 
my  client  made  very  damaging  statements  to  me 
concerning  her  husband,  who  had  deserted  her,  but 
she  could  produce  very  little  evidence  in  support 
of  her  story.  I  told  her  that  in  such  a  case  we 
should  have  to  rely  almost  entirely  on  her  own  tes- 
timony and  that  of  her  two  children ;  and  I  warned 


AN   AGGRAVATED    CASE.  49 

her  as  strongly  as  words  could  do  that  if  she  her- 
self had  been  guilty  of  any  marital  fault,  or  even  im- 
prudence, it  would  be  almost  certain  to"  be  proved 
against  her,  and  she  would  lose  her  case.  But  she 
insisted  strenuously  on  her  own  entire  innocence 
in  every  particular,  except  the  admitted  weakness 
of  "  scolding,"  and  on  her  husband's  entire  guilt  in 
every  respect  wherein  a  husband  could  be  false  to 
his  wife.  Such  inquiries  as  I  was  able  to  make 
did  not  throw  any  further  light  on  the  woman's 
character ;  and  I  was  specially  inclined  to  believe 
her  story  from  the  fact  that  her  little  girl  of  thir- 
teen was  devoted  to  her,  and  that  the  boy  of  seven- 
teen was  rather  inclined  towards  her  than  towards 
his  father.  Well,  the  woman  went  on  the  stand 
and  told  her  story.  Then  the  opposing  counsel 
took  her  in  hand  on  cross-examination,  and  I  was 
astounded  to  hear  the  admissions  of  her  own  guilt 
which  he  forced  from  her.  I  knew  the  case  was 
lost  long  before  she  left  the  stand,  but,  resolved 
to  make  what  fight  was  possible  even  in  such  a 
case,  I  went  on  to  make  out  the  worst  character  I 
could  for  the  husband ;  but  though  the  fair  infer- 
ences from  his  own  admissions  were  about  equal 
to  his  wife's  damaging  testimony  against  herself, 
there  was  no  ground,  legal  or  moral,  for  giving 
that  little  girl  to  the  care  of  such  a  mother,  with 
money  from  the  father  for  her  support.  Neither 

4 


50  LAW   OP   HUSBAND   AND   WIFE. 

ought  such  a  father  to  have  had  her  custody,  even 
though  he  put  her  in  the  care  of  his  sister,  against 
whom  no  objection  could  be  made.  The  legal  cus- 
tody should  have  been  given  to  some  reliable  third 
person  ;  but  to  secure  such  an  order  a  separate 
application  for  guardianship  would  have  had  to  be 
made  ;  and  there  was  no  one  who  was  willing  to 
undertake  the  charge  or  apply  for  the  appointment. 
The  other  case,  —  hard  fought  for  months,  with 
several  hearings  and  temporary  orders,  —  was  one 
in  which  I  endeavored  to  get  her  children  for  a 
mother  who  was  struggling  to  free  herself  from  the 
habit  of  beer-drinking,  which  had  been  her  ruin. 
Her  husband  had  been  guilty  of  such  cruelty  to- 
wards her  as  we  sometimes  read  of  but  never  be- 
lieve. He  had  placed  a  heavy  iron  ring  around  her 
ankle,  padlocked  it  to  a  chain  fastened  to  a  staple 
in  the  floor,  and  kept  her  two  weeks  in  this  condi- 
tion, part  of  the  time  handcuffed,  to  prevent  her,  as 
he  said,  from  getting  beer.  Even  in  such  a  case  as 
this,  when  the  poor  woman  admitted  against  her- 
self the  drinking  habit  and  frequent  intoxication, 
and  when  other  worse  evidence  was  also  given 
against  her,  which  may  or  may  not  have  been  true, 
is  it  any  wonder  that  the  judge  would  not  give 
those  little  children  to  her  with  money  for  their 
and  her  support,  and  leave  her  to  follow  her  own 
course  of  life  ? 


MOTHER  AND  FATHER  EQUAL.         51 

The  tendency  of  modern  decisions  in  many 
of  our  States,  and  a  good  deal  of  positive 
modern  legislation,  has  been  towards  the  equali- 
zation of  the  right  of  guardianship  in  both  par- 
ents. In  the  States  of  Iowa,  Kansas,  Oregon, 
and  in  Washington  Territory,  the  rights  and  re- 
sponsibilities of  the  mother  have  been  expressly 
made  identical  in  every  respect  with  those  of 
the  father,  concerning  the  care,  custody,  support, 
and  education  of  their  minor  children ;  so  that 
with  the  equal  right  to  their  custody  and  to  claim 
their  wages,  the  mother  is  made  equally  responsi- 
ble for  their  support  out  of  her  property,  which 
was  not  the  case  at  common  law,  the  father  only 
being  thus  liable.  In  several  other  States,  statutes 
have  given  to  the  mother  absolute  right  to  the 
guardianship  of  her  children  on  the  death  of  their 
father,  thus  doing  away  with  the  heartless  rule  of 
the  common  law,  which  allowed  a  father  to  appoint 
a  guardian  for  his  children  by  his  last  will,  who 
might  take  the  custody  of  their  persons  from  their 
mother,  as  well  as  the  care  of  their  property.  In 
1860  the  legislature  of  New  York  enacted  that 
"  every  married  woman  is  hereby  constituted  and 
declared  to  be  the  joint  guardian  of  her  children 
with  her  husband,  with  equal  powers,  rights,  and 
duties  in  regard  to  them  with  her  husband,"  but  a 
couple  of  years  later  this  law  was  repealed.  Divorce 


52  LAW   OF   HUSBAND   AND   WIFE. 

courts  in  all  our  States  have  entire  discretionary 
power  concerning  the  custody  of  the  children  of 
parties  to  a  decree,  and  such  orders  as  they  make 
in  regard  to  the  children  may  be  changed  at  any 
time  on  cause  shown  by  either  parent ;  so  that 
children  over  whom  the  court  has  thus  gained 
control  remain  in  a  sense  wards  of  the  court. 

Thus,  though  much  remains  to  be  done  before 
this  vexed  and  difficult  question  of  the  legal  cus- 
tody of  children  is  satisfactorily  settled, — if  any 
settlement  ever  can  be  entirely  satisfactory,  — 
much  has  been  accomplished  certainly  since  the 
days  of  Blackstone,  when  the  state  of  the  law 
compelled  him  to  write  that  "  a  mother,  as  such, 
is  entitled  to  no  power,  but  only  to  reverence  and 
respect." 


CHAPTER  VI. 

CLAIMS   OF  WIDOW  AND   WIDOWER. 
"  Until  death  us  do  part." 

THE  provisions  of  the  law  concerning  marriage 
do  not  cease  with  the  termination  of  the  marital 
relation  by  the  death  of  one  of  the  parties  to  it. 
The  widow's  right  of  dower  and  the  widower's 
right  of  curtesy  in  the  real  estate  of  the  deceased 
husband  or  wife  have  already  been  considered  in 
an  earlier  chapter.  There  is  also  a  distributive 
right  which  the  survivor  has  in  the  personal  prop- 
erty left  by  the  deceased,  which,  however,  differs 
very  greatly  in  the  various  States  of  our  country, 
and  this  will  shortly  be  considered.  But  first 
comes  the  right  to  administer  on  the  estate  of  the 
deceased  husband  or  wife. 

If  there  is  a  will,  the  executor  or  executrix  will 
probably  be  named  therein ;  but  if  there  is  no  will, 
the  court  will  appoint  an  administrator,  whose  duty 
it  will  be  to  take  charge  of  all  property  that  is  left, 
to  settle  all  lawful  debts  out  of  it,  and  then  to  di- 
vide it  between  the  parties  entitled  to  claim  it  by  the 
laws  of  descent  and  distribution.  It  may  be  men- 


54  LAW   OP  HUSBAND   AND   WIFE. 

tioned  here  that  real  property  —  that  is,  land  with 
everything  erected  or  growing  upon  the  same  —  is 
divided  according  to  the  laws  of  descent  in  the  State 
where  it  is  located  ;  but  in  dividing  all  manner  of 
personal  property,  the  administrator  is  governed  by 
the  laws  of  distribution  in  the  State  which  was  the 
home  of  the  deceased  at  the  time  of  his  death. 

In  each  State  there  are  laws  which  guide  the 
court  in  the  appointment  of  administrators.  By 
common  law,  and  in  the  majority  of  our  States, 
the  husband  is  entitled  to  administer  on  the  estate 
of  his  deceased  wife.  Of  course  if  the  parties  have 
been  divorced  he  has  no  such  claim,  for  h*e  is  no 
longer  the  husband ;  and  in  some  States  there  are 
provisions  for  the  appointment  of  some  other  ad- 
ministrator if  the  parties  have  been  separated  by 
the  husband's  fault.  In  Massachusetts,  the  right 
of  administration  "  shall  in  all  cases  be  granted  to 
her  husband,  if  he  is  competent  and  willing  to  un- 
dertake the  trust,  unless  the  deceased  has  made 
some  testamentary  or  other  disposition  of  her  es- 
tate which  renders  it  necessary  or  proper  to  appoint 
some  other  person." 

Laws  in  each  State  also  regulate  the  matter  of 
administration  on  the  estate  of  a  deceased  husband. 
In  England,  and  generally  in  this  country,  the 
widow  is  given  the  preference,  if  willing  and  com- 
petent ;  but  she  has  not  the  same  claim  to  appoint- 


THE  EIGHT   OF   ADMINISTRATION.  55 

ment  that  a  widower  has.  In  Massachusetts,  which 
is  fairly  representative  of  the  law  generally  prevail- 
ing on  the  point,  the  rule  is  that  administration 
"  shall  be  granted  to  the  widow  of  the  deceased  or 
his  next  of  kin,  or  the  widow  jointly  with  the  next 
of  kin,  as  the  Probate  Court  may  deem  fit."  Thus 
it  is  left  entirely  in  the  discretion  of  the  court,  in 
each  particular  case,  to  appoint  the  widow,  or  to 
appoint  the  nearest  relation  of  the  deceased  (ac- 
cording to  certain  rules  of  kindred  which  the  law 
carefully  establishes),  or  to  appoint  them  both  as 
joint  administrators. 

We  come  now  to  the  subject  of  the  share  of 
widow  and  widower  in  the  personal  estate  of  the 
deceased.  The  common  law  gave  to  a  widower  all 
the  personal  property  left  by  his  wife  at  her  death ; 
and  this  rule  has  generally  prevailed  in  this  coun- 
try until  quite  recently,  when,  in  many  States, 
statutes  have  been  passed  more  nearly  equalizing 
the  rights  of  husband  and  wife  in  this  respect.  In 
Massachusetts  the  common  law  rule  on  the  point 
was  in  force  until  1882,  when  it  was  provided  that 
the  husband  should  only  take  one  half  of  his  de- 
ceased wife's  personalty  if  she  left  children  or 
grandchildren,  or  if  she  disposed  of  the  other  half 
by  her  will;  but  if  she  left  neither  children  nor 
will,  then  he  should  take  the  whole ;  and  this  is 
the  law  here  now. 


56  LAW   OP   HUSBAND   AND   WIFE. 

To  a  widow,  the  common  law  gave  no  share 
whatever  in  her  deceased  husband's  personalty  ; 
but  by  a  statute  passed  during  the  reign  of  Charles 
II.,  she  was  given  one  third  of  the  personal  property 
left  by  her  husband,  if  he  died  without  a  will ;  or  if 
there  were  no  children  or  grandchildren,  one  half, 
the  other  half  going  to  his  kindred,  or  in  default  of 
kindred,  to  the  crown.  This  law  also  was  very 
generally  adopted  in  this  country,  but  within  the 
last  few  years  many  changes  have  been  made  in 
various  States.  In  Massachusetts,  the  wife  still 
takes  but  a  third  if  the  husband  leaves  children  or 
grandchildren ;  but  if  there  are  none,  she  takes  the 
whole  up  to  the  value  of  five  thousand  dollars ;  the 
next  five  thousand,  or  any  portion  thereof,  goes  to 
the  husband's  kindred ;  and  if  there  is  personal 
property  above  the  value  of  ten  thousand  dollars, 
half  of  this  residue  goes  to  the  widow  and  half  to 
the  husband's  relations.  If  he  leaves  no  kindred, 
the  widow  takes  all  the  personalty ;  and  this  rule 
in  the  absence  of  kindred  generally  prevails 
throughout  the  country.  It  may  also  be  mentioned 
in  this  connection  that  in  Massachusetts  if  the 
husband  leaves  a  will,  the  widow  may,  at  any  time 
within  six  months  after  its  probate,  waive  the  pro- 
visions, if  any,  which  it  contains  for  her  benefit, 
and  claim  instead  such  a  portion  of  his  estate,  both 
real  and  personal,  as  she  would  have  been  entitled 


DISTRIBUTION   OP   PERSONALTY.  57 

to  if  he  had  died  without  a  will ;  but  if  she  would 
thus  become  entitled  to  personal  property  of  greater 
value  than  ten  thousand  dollars,  she  can  receive, 
above  that  amount,  only  the  income  during  her  life 
of  the  excess  of  her  share  of  such  estate  over  ten 
thousand  dollars. 

By  carefully  considering  these  provisions  it  will 
be  seen  that  in  some  cases  tbe  Massachusetts  law 
gives  an  advantage  to  the  widower  and  in  others  to 
the  widow.  Thus,  if  the  amount  of  personalty  left 
by  a  childless  husband  or  wife  be  five  tbousand  dol- 
lars, the  widow  may  take  the  whole  sum,  despite  her 
husband's  will  to  the  contrary  ;  whereas  the  widower, 
if  the  case  be  reversed,  can  take  but  twenty-five 
hundred  dollars,  the  other  half  going  according  to 
the  will  of  the  deceased  wife.  If  the  amount  be 
between  ten  thousand  and  twenty  thousand  dollars, 
either  survivor  would  take  an  equal  amount, — 
namely,  one  half  the  entire  sum.  But  if  the  amount 
be  over  twenty  thousand  dollars,  the  advantage  is 
in  favor  of  the  husband.  Thus  if  it  be  thirty  thou- 
sand dollars,  the  widower  would  take  fifteen  thou- 
sand out-right,  while  the  widow  would  take  ten 
thousand  out-right  and  the  income  for  life  of  five 
thousand.  If  a  child  be  left,  the  advantage  is  also 
with  the  widower,  who  takes  one  half  his  deceased 
wife's  personalty  ;  while  the  widow  in  like  case 
takes  only  one  third.  So,  too,  where  there  are 


58  LAW   OF   HUSBAND    AND   WIFE. 

no  children  and  no  will ;  the  widower  takes  all  his 
his  deceased  wife's  personalty,  whatever  its  value, 
while  the  widow  shares  equally  with  the  kindred 
of  her  deceased  husband,  if  his  personalty  exceeds 
five  thousand  dollars  in  value. 

The  common  law  very  considerately  compelled 
the  husband  to  defray  all  necessary  funeral  ex- 
penses of  his  deceased  wife,  on  the  ground  that  it 
was  for  his  own  personal  benefit  so  to  do.  And  it 
also  held  a  widow  similarly  bound  to  bury  her  hus- 
band, if  he  left  no  estate,  "  as  a  benefit  and  com- 
fort to  herself."  But  in  Massachusetts  it  was 
recently  decided,  in  the  case  of  Constantinides  v. 
Walsh,  Executor,  that  a  husband  who  has  paid  the 
funeral  expenses  of  his  wife  who  has  left  property, 
may  recover  them  of  her  executor.  So  although 
a  husband  is  bound  to  provide  his  wife  with  neces- 
saries of  life  according  to  his  means  and  position, 
no  matter  how  much  property  she  may  have  in  her 
own  right,  he  is  not  obliged  to  bury  her  when  she 
is  dead,  this  not  being  regarded  as  necessary! 

At  common  law  a  married  woman  could  not  make 
a  valid  will.  Not  only  so,  but  if  a  woman  made  her 
will  before  marriage,  the  marriage  when  it  did  oc- 
cur entirely  revoked  the  will  and  made  it  valueless. 
This  latter  rule  still  prevails  quite  generally  in  this 
country  ;  but  the  former  one  has  been  changed  so 
that  almost  everywhere  now  a  married  woman  may 


A  WIPE'S   WILL   IN   MASSACHUSETTS.  59 

make  a  will  under  more  or  less  restrictions.  If 
her  husband  assents  in  writing  to  her  will  of  her 
personal  estate,  that  will  is  everywhere  good.  In 
some  States,  she  may  make  a  will  both  of  realty 
and  personalty  without  assent  from  him,  which 
will  be  valid  to  convey  all  her  property  ;  in  others 
the  husband's  right  of  curtesy  still  remains  on  her 
real  property,  despite  her  will,  just  as  her  claim  of 
dower  remains  on  his.  In  Massachusetts,  the  law 
concerning  married  women's  wills,  after  many 
changes  from  time  to  time,  stands  now  as  follows  : 
"  A  married  woman  may  make  a  will  in  the  same 
manner  and  with  the  same  effect  as  if  she  were 
sole  [that  is,  unmarried],  except  that  such  will 
shall  not,  without  the  husband's  written  con- 
sent, operate  to  deprive  him  of  his  tenancy  by  the 
curtesy  in  her  real  estate,  or  of  the  right  to  the  use 
of  one  half  of  such  real  estate  for  his  life,  if  they 
have  had  no  issue  born  alive  [for  in  such  case  no 
curtesy  attaches,  and  the  one  half  interest  was  given 
by  statute  in  lieu  thereof],  or  of  more  than  one 
1  half  of  her  personal  estate,  or  of  her  real  estate  not 
exceeding  five  thousand  dollars  in  value  where  no 
issue  survives  her."  So  that  the  power  of  a  wife 
to  make  a  will  in  this  State  without  her  husband's 
consent  practically  amounts  to  just  this :  that  she 
may  dispose  of  half  her  personal  property ;  and  if 
she  leave  a  child  or  grandchild  alive  at  her  death, 


60  LAW   OF   HUSBAND   AND   WIFE. 

she  may  dispose  of  all  her  real  property,  subject, 
however,  to  her  husband's  right  to  enjoy  its  entire 
income  during  his  life  ;  but  if  there  be  no  child 
or  grandchild  living  at  her  death,  her  husband 
may  claim  her  realty  up  to  the  value  of  five  thou- 
sand dollars,  despite  any  provision  of  her  will,  and 
may  also  have  the  income  for  his  life  of  all  the 
surplus  above  five  thousand  dollars  in  value  if  a 
child  had  been  bora  alive  to  them  during  the  mar- 
riage, or  of  one  half  such  surplus  if  no  child  had 
been  born ;  and  in  any  case  he  takes  one  half  of 
her  personalty. 

It  must  be  remembered  in  this  connection  that  a 
widow  has  the  same  right,  if  her  husband  die  leav- 
ing no  child  or  grandchild,  to  take  his  real  estate 
up  to  the  value  of  five  thousand  dollars,  and  the 
income  of  half  the  surplus  for  her  life,  notwith- 
standing any  attempt  that  he  may  make  by  his  will 
to  dispose  of  his  property  otherwise.  Thus  the 
tendency  of  modern  legislation  is  to  equalize  the 
claims  of  husband  and  wife  on  each  other's  estate, 
and  in  several  States  this  has  been  entirely  accom- 
plished, as  will  be  seen  by  reference  to  the  Abstracts 
of  Statutes  in  the  latter  part  of  the  book. 


CHAPTER  VII. 

DIVORCE. 
"  Those  whom  God  hath  joined  together  let  no  man  put  asunder." 

IF  it  could  be  assumed  that  all  men  and  women 
who  are  bound  in  matrimony  were  joined  by  God, 
then  the  doctrine  of  the  Roman  Church  forbidding 
divorce  would  deserve  serious  consideration ;  but 
to  throw  upon  the  kind  Father  the  responsibility 
for  all  the  misery  of  His  unhappy  mismated  chil- 
dren seems  scarcely  reverent  or  just.  Bat  without 
going  into  the  arguments  for  or  against  divorce,  I 
will  give  as  briefly  as  may  be  the  law  on  the  sub- 
ject as  it  now  exists  in  this  country. 

Until  very  recently  divorce  could  not  be  obtained 
in  England  save  by  the  expensive  method  of  an  act 
of  Parliament,  and  then  only  for  adultery,  and  not 
to  the  wife  even  on  this  ground,  unless  by  proving 
other  special  facts  in  addition,  such  as  incest  or 
bigamy,  extreme  cruelty,  or  '  desertion  for  two 
years,  which  it  was  seldom  possible  to  do.  And 
these  same  distinctions  between  the  respective 
rights  of  husband  and  wife  to  sue  for  divorce  still 
prevail  in  England,  since  divorce  jurisdiction  was 


C2  LAW    OF    HUSBAND    AND   WIFE. 

given  to  the  courts.  In  Canada  a  woman  cannot 
obtain  a  divorce  from  her  husband,  although  she 
prove  him  guilty  of  infidelity,  unless  he  has  actu- 
ally established  his  mistress  in  the  same  house 
with  his  wife,  or  unless  he  has  so  conducted  him- 
self in  the  matter  as  specially  to  disgrace  her ;  and 
this  latter  provision  is  so  construed  as  to  practi- 
cally prevent  a  woman  from  obtaining  a  divorce  in 
the  courts  at  all.  Only  last  year,  a  lady  who 
had  been  married  from  one  of  the  best  families 
of  Massachusetts  to  a  Montreal  man  sought  a  separ- 
ation —  not  an  absolute  divorce  —  in  the  Canadian 
courts,  proving  him  guilty  of  pronounced  infidelity, 
and  it  was  refused  her.  Fearing  constantly  lest  her 
children  should  be  taken  from  her  by  the  man  who 
had  shown  the  photograph  of  his  young  daughter 
just  blooming  into  womanhood  to  the  inmates  of 
a  disreputable  house,  and  who,  so  far  from  con- 
tributing towards  their  support,  had  squandered  the 
larger  part  of  their  mother's  fortune,  this  woman 
appealed  in  desperation  to  Parliament,  and  after  a 
long,  hard  fight,  which  cost  her  about  three  thou- 
sand dollars  for  attorneys'  fees  alone,  she  did  se- 
cure a  divorce  and  the  custody  of  her  children. 

In  our  country  there  are  but  few  States  where 
any  distinction  is  made  between  husband  and  wife 
in  respect  to  the  causes  which  may  be  ground  for 
divorce.  In  North  Carolina  a  divorce  may  be 


INEQUALITIES   IN   DIVORCE   LAWS.  63 

given  the  husband  for  any  act  of  adultery  proven 
against  the  wife,  but  to  the  wife  a  decree  will  not 
be  given  unless  her  husband  separates  from  her 
and  lives  in  adulterous  relations  with  another.  In 
Texas  the  law  is  similar.  In  Maryland  there  is  a 
strange  provision  giving  divorce  to  a  husband  who 
proves  his  wife  to  have  been  guilty  of  any  act  of 
illicit  intercourse  before  marriage,  but  no  corre- 
sponding right  is  given  to*the  wife.  In  many 
States,  especially  Southern,  divorce  is  given  to  the 
husband  if  he  proves  his  wife  to  have  been  preg- 
nant by  another  at  the  time  of  marriage  and  un- 
known to  himself ;  but  only  in  one  State,  Iowa,  is 
it  provided  that  a  husband  who  had  an  illegitimate 
child  living  at  the  time  of  the  marriage,  unknown 
to  the  wife,  cannot  avail  himself  of  this  charge  to 
obtain  a  divorce  from  her.  Kentucky  gives  di- 
vorce to  a  husband  who  proves  his  wife  to  be  guilty 
of  such  lewd  behavior  as  shows  her  to  be  unchaste, 
but  gives  no  corresponding  cause  for  divorce  to  the 
wife.  Both  Virginia  and  West  Virginia  give  di- 
vorce to  a  husband  who  proves  his  wife  to  have 
been  notoriously  a  prostitute  prior  to  the  marriage 
and  unknown  to  him;  but  only  "West  Virginia 
gives  divorce  to  a  wife  who  proves  her  husband  to 
have  been  notoriously  a  licentious  person  prior  to 
the  marriage  and  unknown  to  her.  In  South  Caro- 
lina no  divorce  has  ever  been  allowed  for  anv  cause. 


64  LAW   OF   HUSBAND    AND   WIFE. 

The  causes  most  generally  prevailing  as  ground 
for  divorce  are  adultery,  cruelty,  and  desertion. 
Next  in.  importance  are  .drunkenness,  imprison- 
ment, and  impotence,  there  being  very  few  States 
that  do  not  include  these  in  the  statute  regulating 
divorces.  The  last  cause  is  rarely  assigned,  how- 
ever. In  many  States  non-support  by  the  husband 
is  ground  for  divorce  in  favor  of  the  wife  ;  but,  as 
she  is  usually  obliged  to  prove  that  she  actually 
suffers  for  lack  of  the  necessaries  of  life  as  the  re- 
sult of  her  husband's  failure  to  provide  them,  that 
she  does  not  receive  them  from  any  source,  by  her 
own  labor  or  otherwise,  and  that  he  is  amply  able 
to  support  her  and  wilfully  refuses  to  do  so,  this 
remedy  is  practically  of  little  value  and  is  seldom 
relied  on  independently  of  other  causes. 

We  often  hear  the  complaint  that  divorce  is 
easily  obtained  in  this  country  on  very  slight  and 
trivial  pretexts,  and  the  statement  is  made  that 
the  marriage  bond  may  be  dissolved  on  the  ground 
of  "  incompatibility  of  temper."  No  such  cause  for 
divorce  exists  in  any  State,  either  by  this  name  or 
any  other,  nor  is  it  now  left  to  the  discretion  of  the 
court  to  grant  absolute  divorce  for  causes  not  speci- 
fically named  in  the  statute,  unless  in  Rhode  Island, 
and  possibly  one  or  two  other  States.  In  each  State 
the  grounds  for  divorce  are  distinctly  set  forth  in 
the  statutes  on  the  subject,  and  there  is  not  one 


COMMON    CAUSES    FOR    DIVORCE.  65 

anywhere  named  which  can  justly  be  called  trivial 
or  unimportant,  —  though  of  course  it  is  extremely 
desirable  that  all  divorce  laws  should  be  made  uni- 
form throughout  the  country.  The  danger  to  so- 
ciety that  divorce  may  be  too  easily  obtained  is 
seldom  through  laxity  of  the  statute  laws  regulating 
it,  but  through  laxity  in  the  execution  of  these  laws 
in  the  courts.  In  different  parts  of  the  country 
very  different  methods  and  opinions  prevail  on  the 
subject ;  and  while  some  judges  are  very  strict, 
others  are  liberal  to  the  verge  of  carelessness. 

The  five  causes  most  commonly  urged  may  be 
briefly  considered.  As  to  imprisonment,  the  pro- 
visions in  the  various  States  differ,  very  greatly ;  in 
some  imprisonment  for  life  being  necessary  to  give 
divorce,  in  others  imprisonment  for  certain  stated 
terms,  for  certain  classes  of  offences,  or  in  certain 
places  of  confinement.  In  Massachusetts  divorce 
may  be  had  if  the  other  party  is  sentenced  to  con- 
finement at  hard  labor  for  five  years  in  State- 
prison,  jail,  or  house  of  correction. 

Drunkenness,  or  habitual  intemperance,  to  be  a 
cause  for  divorce,  must  in  most  States  have  con- 
tinued a  specified  number  of  years ;  and  generally, 
also,  the  habit  must  have  been  contracted  after 
marriage.  If  a  woman  knowingly  marries  a  man 
who  has  already  contracted  habits  of  intoxication, 
whether  in  the  hope  of  reforming  him  or  expecting 

5 


66          LAW  OF  HUSBAND  AND  WIFE. 

to  endure  the  results  which  may  aviso  from  such 
tendency,  she  cannot  afterward  go  into  court  to 
claim  a  divorce  on  account  of  this  state  of  affairs, 
into  which  she  has  entered  with  her  eyes  open. 

Cruelty  and  drunkenness  are  causes  very  fre- 
quently alleged  together,  though  either  one  may  be 
sufficient  by  itself  to  give  a  divorce.  The  cruelty 
necessary  to  be  proved  may  be  such  violent  conduct 
as  to  endanger  life,  limb,  or  health,  or  to  create  a 
reasonable  fear  of  such  danger ;  or  conduct  which 
results  in  such  mental  torture  that  its  natural  and 
direct  effect  is  to  injure  or  endanger  the  physical 
health. 

Desertion  is  of  two  kinds,  the  voluntary  separa- 
tion by  one  party  from  the  other,  and  the  voluntary 
refusal  by  one  party  to  return  to  the  other  upon 
request,  when  the  party  so  requesting  is  not  in 
fault.  Thus  if  a  husband  compels  his  wife  to  leave 
his  home  by  driving  her  forth,  he,  and  not  she,  is 
guilty  of  desertion.  But  if,  shortly  afterward,  he 
repents,  and  asks  her  to  return,  and  if  she  can 
assign  no  good  reason  for  believing  that  his  repen- 
tance is  not  genuine,  or  that  he  will  ill-treat  her  in 
the  future,  she  must  return,  else  she  may  herself  be 
charged  with  desertion.  If  the  husband  leaves  the 
wife  temporarily,  to  be  absent  on  business  or  for 
pleasure,  without  the  intent  of  abandoning  her,  it 
is  not  desertion ;  but  if  he  fails  to  return,  it  may  be- 


DESERTION   AND   ADULTERY.  67 

come  so,  especially  if  she  requests  him  to  return 
and  he  does  not.  The  fact  that  she  continues  to 
reside  in  his  house,  supported  by  his  money,  does 
not  affect  the  case,  the  desertion  consisting  in  his 
refusal  to  live  with  her.  If,  however,  he  goes  else- 
where to  live  and  sends  for  her  to  join  him,  her 
refusal  to  go  is  desertion  on  her  part ;  for  to  the 
husband  is  given  by  law  the  right  to  choose  the 
matrimonial  domicile,  and  the  wife  must  abide  by 
his  choice  unless  she  can  prove  that  serious  danger 
would  thereby  ensue  to  her  health.  If  the  separa- 
tion be  caused  by  such  ill-treatment  on  the  part  of 
one  that  the  other  is  obliged  to  leave,  the  charge  of 
desertion  may  be  added  to  other  charges  against 
the  former,  who  in  such  case  is  the  party  intending 
a  separation,  rather  than  the  party  who  leaves. 
But  if  the  separation  be  by  mutual  consent,  neither 
party  can  charge  desertion  ;  for  neither  can  prove 
that  he  or  she  desired  to  continue  the  marriage 
relation  and  would  have  done  so  but  for  the  refusal 
of  the  other.  The  length  of  time  during  which 
desertion  must  continue,  to  b.e  cause  for  divorce,  is 
fixed  in  most  States  by  statute. 

Adultery  is  everywhere  ground  for  divorce  in 
this  country,  except  as  already  stated.  In  New 
York  this  is  the  only  cause  for  which  absolute  di- 
vorce is  given.  A  legal  separation  may  be  had  for 
other  causes ;  but  this  is  not  a  real  divorce,  and 


68  LAW   OF   HUSBAND    AND    WIFE. 

^ 

docs  not  permit  of  subsequent  marriage.  It  is 
called  divorce  "  from  bed  and  board,"  and  is  merely 
a  judicial  decree  authorizing  the  parties  to  live 
apart  until  a  reconciliation  may  be  effected. 

In  some  States  certain  causes  may  give  an  abso- 
lute divorce,  certain  others  a  separation  merely. 
In  some  cases,  too,  a  decree  of  nullity  may  be  had, 
declaring  the  marriage  itself  to  have  been  void 
from  the  beginning.  Another  method  of  divorce, 
that  now  prevails  in  Massachusetts,  is  by  a  "  decree 
nisi ; "  that  is,  a  decree  of  immediate  separation,  to 
be  followed  by  absolute  divorce  at  a  later  date,  in 
case  matrimonial  relations  are  not  resumed  mean- 
time. If  the  parties  choose  to  return  to  each  other 
during  this  probationary  period,  they  may  do  so 
without  any  form  or  ceremony ;  but  after  the  final 
decree  of  absolute  divorce  is  given,  they  cannot 
come  together  again  without  being  re-married. 
During  this  period,  also,  any  one  whose  interests 
will  be  affected  by  the  divorce,  the  parties  them- 
selves, children  or  others,  may  come  forward,  and 
by  showing  good,  cause,  object  to  the  final  decree 
being  given.  In  Massachusetts  all  decrees  now 
are  nisi,  not  to  be  made  absolute  till  the  expiration 
of  six  months. 

Divorce  can  in  no  instance  be  secured  by  mutual 
agreement  to  that  effect,  or  by  mere  default.  The 
party  applying  for  a  decree  must  prove  his  or  her 


VARIOUS   DEFENCES.  69 

case,  whether  any  defence  is  made  or  not,  though 
the  amount  of  proof  required  in  uncontested  cas^s 
differs  in  different  States.  On  the  contrary,  if  it 
appears  that  there  has  been  collusion,  —  that  is, 
that  the  parties  have  agreed  on  a  separation,  or 
that  the  defendant  is  in  any  way  aiding  to  bring  it 
about,  —  no  divorce  will  anywhere  be  given.  So 
if  there  is  connivance, — that  is,  if  the  complaining 
party  has  in  any  way  consented  to  or  winked  at 
the  wrong-doing  of  which  complaint  is  made,  —  no 
divorce  can  be  obtained. 

Condonation  is  another  'defence,  which  will  abso- 
lutely prevent  a  divorce  from  being  given  for  a 
wrong  which  has  once  been  forgiven.  Thus,  if  a 
wrife  learns  with  any  fair  degree  of  certainty  that 
her  husband  has  wronged  her,  by  infidelity  or 
otherwise,  and  continues  to  live  with  him,  it  is  con- 
sidered that  she  forgives  him  ;  and  she  cannot  after- 
wards make  it  cause  for  divorce,  no  matter  how 
grievous  the  wrong  may.  be.  In  such  case,  a  party 
should  not  delay  a  single  day,  if  he  or  she  intends 
to  apply  for  a  divorce,  but  should  leave  the  other 
at  once,  and  institute  legal  proceedings.  Mere 
suspicion  of  a  wrong  is  not,  however,  sufficient 
ground  to  justify  a  separation,  and  there  may  be 
delay  until  reasonable  proof  is  obtained. 

Recrimination  is  a  defence  often  urged  where 
the  defendant  cannot  disprove  the  charges  made 


70  LAW   OP   HUSBAND   AND    WIFE. 

against  him  ;  it  being  sufficient,  in  most  if  not  all 
our  States,  to  show  that  the  plaintiff  has  also  been 
guilty  of  a  similar  fault,  in  which  case  no  divorce 
will  be  given. 

In  order  to  apply  for  a  divorce,  the  applicant 
must  be  a  citizen  of  the  State  wherein  application 
is  made,  and  must  have  resided  there  a  certain 
length  of  time,  which  is  fixed  in  each  State  by 
statute,  differing  very  greatly  in  different  parts  of 
the  country.  In  some  States  and  Territories  of  the 
far  West,  six  months'  residence  is  sufficient  to  give 
the  court  divorce  jurisdiction ;  while  in  Massachu- 
setts it  must  be  five  years.  For  no  other  purpose 
is  a  wife's  domicile  ever  considered  to  be  different 
from  that  of  her  husband ;  but  in  order  to  apply 
for  a  divorce,  she  may  acquire  a  new  domicile  apart 
from  his.  The  worst  result  of  the  great  differences 
between  divorce  laws  prevailing  in  different  States 
is  that  a  citizen  of  one  State,  who  wishes  to  take 
advantage  of  the  more  elastic  laws  of  another 
State,  may  go  there,  take  up  a  temporary  resi- 
dence for  six  months  or  a  year,  as  the  case  may  be, 
and  calling  himself  a  citizen,  obtain  a  divorce,  arid 
then  return  to  his  real  home.  But  a  decree  thus 
obtained  is  in  fraud  of  the  laws  of  both  States,  and 
is  not  valid ;  and  if  he  marries  again,  his  marriage 
is  not  legal,  and  may  be  set  aside  by  showing  such 
facts  as  will  prove  a  fraudulent  intent.  The  main 


ALIMONY,  AND  CUSTODY  OF  CHILDREN.     71 

difficulty  in  the  way  of  such  proof,  however,  is  that 
one  has  a  perfect  right  to  change  his  domicile  at 
any  time  and  as  often  as  he  chooses,  and  to  avail 
himself  of  any  laws  in  the  place  which  at  the  time 
is  his  domicile.  But  to  acquire  a  domicile,  a  per- 
son must  not  only  live  in  the  place,  or  be  on  his 
way  to  live  there,  but  it  must  be  his  genuine  inten- 
tion to  remain  there  permanently  —  an  intention, 
however,  which  he  may  change  at  any  later  time, 
if  he  sees  fit.  It  is,  therefore,  only  possible  to 
prove  his  lack  of  intention  to  remain  in  the  place 
where  he  procures  a  divorce,  by  his  acts,  words, 
admissions,  or  otherwise,  and  this  is  generally  diffi- 
cult, though  sometimes  easy.  Too  much  attention 
cannot  be  paid  to  this  point ;  for  many  broken 
homes  and  legal  complications  over  rights  to  prop- 
erty have  arisen,  and  many  more  will  arise  in  the 
future,  from  these  invalid  divorces  and  void  mar- 
riages based  on  fraudulent  domiciles. 

Alimony,  usually  more  or  less  in  the  discretion 
of  the  court  as  to  amount,  may  be  given  to  the 
wife  who  obtains  a  divorce  from  her  husband.  He 
may  also  be  ordered  to  pay  his  wife's  court  ex- 
penses, whether  she  be  plaintiff  or  defendant.  The 
custody  of  children  may  be  given  to  either  party, 
or  in  case  of  necessity  taken  from  both  parents  and 
given  to  the  care  of  a  guardian,  entirely  in  the  dis- 
cretion of  the  court,  which  must,  however,  take  into 


72  LAW   OF   HUSBAND   AND   WIFE. 

consideration  all  the  circumstances  of  the  case,  and 
make  such  disposition  of  children  as  seems  for 
their  own  best  good,  this  being  the  criterion  rather 
than  the  wishes  or  claims  of  the  parents.  The  chil- 
dren are  usually  given  to  the  parent  who  is  inno- 
cent, and  very  young  children  may  possibly  be 
given  to  the  mother  whether  she  be  innocent  or 
guilty,  but  consideration  is  also  had  to  the  ability 
of  the  parent  to  maintain  the  children.  This  sub- 
ject has  already  been  considered  at  some  length  in 
an  earlier  chapter,  the  law  concerning  the  custody 
of  children  being  practically  the  same,  whether  on 
divorce  or  separation  without  divorce.  When  it 
appears  desirable  that  the  children  be  given  to  the 
custody  of  the  mother,  and  the  father  has  means 
which  could  be  'applied  to  their  support,  the  court 
may  order  him  to  make  certain  payments  to  the 
wife  for  their  maintenance,  whether  alimony  is 
given  her  for  her  own  support  or  not.  The  decree 
of  the  court  concerning  the  children  of  divorced 
parents  is  always  liable  to  be  opened  up  and  recon- 
sidered ;  and  a  new  decree  may  be  obtained  at  any 
time  if  it  be  shown  to  be  necessary  for  the  good  of 
the  children  themselves. 


ABSTRACTS  OF  STATUTES 

IN  ALL  THE   STATES  AND  TERRITORIES  CONCERN- 
ING THE  LAW  OF   HUSBAND   AND   WIFE. 


ALABAMA. 

WIFE'S  LEGAL  STATUS. 

THE  law  concerning  married  women  was  radically  changed 
by  an  act  passed  in  1887.  As  it  stands  now,  all  property 
of  any  kind  owned  by  a  woman  at  marriage,  or  which  comes 
to  her  after  marriage  in  any  way,  constitutes  her  separate 
estate.  She  may  dispose  of  it  by  will,  but  not  by  deed  or 
other  conveyance,  unless  her  husband  is  insane,  or  has  aban- 
doned her,  or  is  non-resident  in  the  State,  or  is  imprisoned 
for  a  term  of  more  than  two  years,  in  any  of  which  cases  she 
may  convey  her  property  alone.  Her  separate  estate  is  liable 
on  claims  for  family  necessaries,  but  not  for  her  husband's 
debts.  A  husband  is  not  liable  for  his  wife's  debts  con- 
tracted before  marriage,  or  after  marriage  if  he  consented  in 
writing  to  her  contracting  such  debts,  in  which  case  she  and 
her  property  only  are  liable.  Her  earnings  and  damages  for 
personal  injuries  belong  to  her.  She  may  sue  and  be  sued 
alone.  She  can  enter  into  business  or  trade  relations  in  her 
own  name  if  she  files  her  husband's  written  consent  in  the 
Probate  Court  in  the  county  of  their  residence;  but  if  he  is 
insane,  non-resident,  or  has  abandoned  her,  his  consent  %is 
not  necessary.  Husband  and  wife  may  contract  directly 


74  LAW    OF    HUSBAND    AND    WIFE. 

with  each  other,  but  subject  to  the  usual  rules  of  law  that 
govern  persons  in  confidential  relations.  But  the  wife  can- 
not become  her  husband's  surety,  either  directly  or  indirectly. 
A  woman's  marriage  revokes  her  will  previously  made. 
Women  are  of  age  at  twenty-one,  but  may  marry  without 
parents'  consent  and  may  make  a  will  of  personal  property 
at  eighteen. 

CLAIMS  ON  PROPEUTY. 

A  widower  takes  one  half  his  deceased  wife's  personal 
property ;  also  the  use  for  his  life  of  her  real  estate,  unless 
the  Chancery  Court  decrees  otherwise. 

If  a  widow  has  no  separate  estate  of  her  own,  she  takes 
dower  in  all  lands  of  which  her  husband  died  possessed,  also 
in  all  held  in  trust  for -him.  If  he  leaves  issue  or  dies  insol- 
vent, her  dower  attaches  to  one  third  of  his  lands  for  her  life ; 
otherwise,  to  one  half.  Of  his  personal  property  she  takes 
one  half  if  he  dies  without  issue,  or  leaving  only  one  child 
or  descendants  of  only  one ;  if  more  than  one  and  not  more 
than  four,  she  shares  equally  with  the  children;  and  if  more 
than  four,  she  takes  one  fifth  of  his  personalty.  If  he  leaves 
no  relatives,  she  takes  it  all.  But  it'  a  widow  has  a  separate 
estate  of  her  own  equal  to  her  share  in  her  husband's  prop- 
erty, she  takes  nothing.  If  she  has  an  estate  of  less  value, 
she  takes  enough  from  her  share  in  his  estate  to  equal  the 
amount  which  would  have  come  to  her  if  she  had  had  no 
estate  of  her  own. 

DIVORCE. 

Causes  for  divorce  are  adultery ;  impotency  ;  voluntary 
abandonment  from  bed  and  board  for  two  years;  imprison- 
ment for  two  years  in  penitentiary,  sentence  being  for  seven 
years  or  longer;  crime  against  nature,  whether  committed 


AEIZONA   TEREITOEY.  75 

before  or  after  marriage.  In  favor  of  the  husband,  for  preg- 
nancy of  the  wife  at  time  of  marriage  without  his  knowl- 
edge or  agency.  In  favor  of  wife,  for  habitual  drunkenness 
of  husband,  if  the  habit  did  not  exist  at  time  of  marriage  to 
wife's  knowledge,  and  for  actual  violence  committed  upon 
her  by  the  husband  with  danger  to  life  or  health,  or  where 
there  is  reasonable  apprehension  of  such  violence.  The  cus- 
tody of  children  may  be  given  to  either  parent,  and  an  allow- 
ance for  the  maintenance  of  the  wife  may  be  given  her  out  of 
his  estate  if  her  own  estate  is  insufficient. 


ARIZONA  TERRITORY. 

WIFE'S  LEGAL  STATUS. 

THE  community  system  prevails.  All  property  of  any  kind 
owned  by  either  husband  or  wife  at  marriage,  or  acquired 
during  the  marriage  by  gift,  by  will,  or  by  inheritance,  and 
all  income  thereof,  constitutes  the  separate  estate  of  hus- 
band or  wife,  free  from  the  debts  of  the  other ;  and  the  wife 
has  exclusive  control  of  her  property,  which  she  may  dispose 
of  in  any  way  as  if  unmarried.  Property  acquired  by  either 
after  marriage  in  any  way,  except  by  gift,  devise,  or  descent, 
constitutes  the  community  property  of  both;  but  during  the 
marriage  the  husband  only  can  dispose  of  it.  It  is  liable  for 
community,  or  family,  debts.  Married  women  may  carry  on 
business  or  trade  in  their  own  right,  but  they  must  give  a 
formal  notice  to  the  public  that  the  business  is  theirs,  as  re- 
quired by  a  statute  on  the  subject.  They  may  sue  and  be 
sued  concerning  their  separate  estate.  They  cannot  act  as 
administratrix,  but  may  be  executrix  if  so  named  in  a  will. 
A  married  woman's  property  must  be  inventoried  and  re- 


76  LAW   OF   HUSBAND   AND   WIFE. 

corded  to  secure  it  to  her.     Any  minor  attains  bis  or  her 
majority  for  business  purposes  by  marriage. 

CLAIMS  ox  PROPERTY. 

There  is  no  curtesy  or  dower,  unless  dower  was  restored 
by  the  act  of  Congress  dated  March  3,  1887,  whereby  it  was 
enacted  that  a  widow  shall  have  the  right  of  dower  in  all  the 
Territories  of  the  United  States.  If  no  issue  survives,  the 
widow  or  widower  takes  all  the  community  property;  other- 
wise, half  of  it.  A  homestead  and  certain  other  property, 
not  exceeding  five  thousand  dollars  in  value,  may  be  set  apart 
for  the  widow.  If  the  deceased  left  no  will,  but  left  issue, 
the  widow  or  widower  takes  one  third  of  the  personal  prop- 
erty of  the  separate  estate  of  the  deceased,  and  one  third  for 
life  of  the  real  property;  but  if  no  issue  survives,  the  widow 
or  widower  takes  one  half  of  the  real  property  absolutely,  and 
all  of  the  personalty;  and  if  the  deceased  left  no  father  nor 
mother,  then  the  widow  or  widower  takes  the  whole  of  the 
estate. 

DIVORCE. 

Causes  for  divorce  are  adultery  ;  extreme  cruelty  by  per- 
sonal violence  .or  other  means ;  voluntary  abandonment  for 
six  months;  conviction  of  a  felony  and  imprisonment.  Also 
in  favor  of  the  wife,  for  the  habitual  intemperance  of  her 
husband,  or  his  wilful  neglect  to  provide  her  with  the.  com- 
forts and  necessaries  of  life  for  six  months,  having  ability  to 
provide  the  same,  or  failing  to  so  provide  for  her  by  reason 
of  his  idleness,  profligacy,  or  dissipation.  The  plaintiff  must 
have  resided  six  months  in  the  Territory.  Marriages  may 
be  pronounced  void  for  impotence,  or  any  other  impediment 
that  renders  the  contract  invalid  from  the  beginning. 


ARKANSAS. 


ARKANSAS. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  belonging  to  a  wife  at 
marriage,  or  coming  to  her  after  marriage  in  any  way,  in- 
cluding her  earnings,  constitutes  her  separate  estate,  free 
from  her  husband's  debts  or  control.  She  may  dispose  of 
it  by  sale  or  by  deed  as  if  she  were  unmarried ;  but  in  order 
to  hold  it  as  her  own  without  special  proof  of  ownership,  she 
must  make  a  schedule  of  such  property  and  record  it,  in  ac- 
cordance with  certain  statutory  requirements.  She  may  make 
a  will  of  all  her  property,  except  that  she  cannot  deprive  her 
husband  of  his  curtesy.  Her  property  is  liable  for  such  debts 
as  she  contracts  with  special  reference  to  it.  She  may  trade 
alone,  and  may  make  contracts  and  sue  and  be  sued  concerning 
that  trade  or  business,  and  concerning  her  separate  estate. 
She  cannot  act  as  executrix  or  administratrix.  The  mar- 
riage of  a  woman  revokes  her  will  previously  made.  Women 
are  of  age  at  eighteen. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  prevails.  Also  common  law  dower 
in  one  third  of  the  husband's  realty,  with  one  third  of  his 
personalty  absolutely,  if  there  is  surviving  issue;  if  none, 
then  the  widow  takes  one  half  his  personalty  and  one  half 
his  realty  for  her  life,  instead  of  one  third. 

DIVORCE. 

Causes  for  divorce  are  adultery;  bigamy;  impotency; 
wilful  desertion  for  one  year  without  reasonable  cause ;  con- 
viction of  felony  or  other  infamous  crime;  habitual  drunk- 


78  LAW   OF   HUSBAND   AND   WIFE. 

enness  for  one  year;  cruel  and  barbarous  treatment 
endangering  life;  such  personal  indignities  as  render  the 
condition  of  the  applicant  intolerable;  permanent  or  in- 
curable insanity,  occurring  subsequent  to  marriage.  The 
plaintiff  must  have  resided  in  the  State  one  year.  The 
cause  of  divorce  must  have  occurred  in  the  State ;  or,  if  out 
of  the  State,  it  must  have  been  a  legal  cause  of  divorce  where 
it  did  occur,  or  the  plaintiff's  residence  must  have  been  at 
that  time  in  the  State  where  it  occurred;  and  in  any  case 
the  cause  must  have  occurred  within  five  years'  time  prior 
to  the  suit.  Alimony  and  attorney's  fees  may  be  given  to 
the  wife. 


CALIFORNIA. 

WIFE'S  LEGAL  STATUS. 

THE  community  system  prevails  in  this  State.  All  prop- 
erty owned  at  marriage  by  either  husband  or  wife,  together 
with  all  acquired  by  either  during  the  marriage,  by  gift,  in- 
heritance, or  through  the  will  of  any  deceased  person,  con- 
stitutes the  separate  property  of  each.  All  acquired  by 
either  during  the  marriage  in  any  other  way  is  the  common 
property  of  both,  over  which  the  husband  has  the  exclusive 
management  and  control,  except  that  he  cannot  so  dispose 
of  it  as  to  deprive  his  wife  of  her  interest  in  one  half  the 
proceeds ;  and  if  he  attempts  to  do  so,  she  may  maintain  suit 
against  him  for  its  recovery.  Husband  and  wife  may  con- 
tract directly  with  each  other,  and  may  sue  each  other  for 
breach  of  such  contracts,  which,  however,  are  governed  by 
the  rules  of  law  that  always  control  parties  who  stand  in 
confidential  relations  to  each  other.  A  wife  may  make  con- 
tracts of  all  kinds  concerning  and  binding  upon  her  separate 


CALIFORNIA.  79 

estate,  and  she  may  convey  and  dispose  of  it  in  any  way  as 
if  unmarried  ;  but  a  conveyance  by  a  married  woman  must 
be  acknowledged  by  her,  which  in  the  case  of  deeds  given  by 
other  persons  is  not  imperative.  The  separate  estate  of  each 
is  liable  for  his  or  her  debts  contracted  before  or  after  mar- 
riage, but  not  for  those  of  the  other  party.  The  community 
property  is  liable  for  the  wife's  debts  contracted  before  mar- 
riage if  she  has  no  separate  estate,  but  not  for  her  debts  after 
marriage  unless  her  husband  pledges  or  mortgages  it  in  se- 
curity therefor.  Her  earnings  are  community  property,  but 
are  not  liable  for  her  husband's  debts ;  if  living  apart  from 
him,  they  are  her  separate  property.  She  may  trade  or 
transact  business  as  if  unmarried,  after  first  obtaining  leave 
of  court.  She  may  act  as  executrix,  but  not  as  administra- 
trix. She  may  dispose  of  her  property  by  her  will  without 
her  husband's  assent.  Her  will  made  before  marriage  is 
revoked  thereby.  Both  community  and  separate  property  of 
each  may  be  subjected  to  the  support  and  education  of  their 
children,  the  court  fixing  the  proportions  in  which  the  dif- 
ferent funds  shall  be  applied.  The  child's  custody,  services, 
and  earnings  belong  to  the  father;  but  he  cannot  appoint 
another  guardian  in  his  place  without  the  mother's  written 
consent,  unless  she  has  deserted  him  or  they  are  living  apart 
by  agreement.  Women  are  of  full  age  at  eighteen  for  all 
purposes. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  A  widower  takes  all  the 
community  property;  a  widow  takes  one  half  of  it.  The 
separate  property  of  husband  and  wife  may  be  all  disposed 
of  by  his  or  her  will ;  but  if  there  is  no  will,  and  deceased 
leaves  no  issue,  or  only  one  child  or  descendants  of  only  one, 
then  the  surviving  widow  or  widower  takes  half  the  separate 


80  LAW   OP   HUSBAND   AND   WIFE. 

estate  absolutely,  both  real  and  personal;  and  if  no  issue, 
parent,  brother,  or  sister  is  left,  then  the  widow  or  widower 
takes  it  all.  If  more  than  one  child  or  descendants  of  more 
than  one  be  left,  one  third  goes  to  the  widow  or  widower. 

DIVORCE. 

Causes  for  divorce  are  adultery;  extreme  cruelty;  wilful 
desertion  or  wilful  neglect  for  one  year ;  habitual  intemper- 
ance for  one  year ;  conviction  of  felony.  Also,  a  marriage 
may  be  annulled  for  bigamy  ;  impotency  or  unsound  mind 
at  time  of  marriage;  for  want  of  legal  consent  to  the  mar- 
riage; and  for  consent  obtained  by  fraud  or  force.  The 
plaintiff  must  have  resided  six  months  in  the  State.  Ali- 
mony and  costs  of  suit  may  be  given  to  the  wife,  and  the 
court  may  enforce  such  order  against  the  husband  by  im- 
prisonment. The  community  property  is  equally  divided 
between  the  parties,  unless  the  divorce  be  for  extreme  cruelty 
or  adultery,  when  the  court  may  apportion  it  as  seems  just. 
Custody  of  children  may  be  given  to  either  parent. 

A  deserted  wife  may  bring  an  action  against  her  husband 
for  the  separate  maintenance  of  herself  and  children  without 
divorce,  if  she  prefer  to  do  so. 


COLORADO. 

WIFK'S  LEGAL  STATUS. 

ALL  property  belonging  to  a  woman  at  her  marriage  and 
all  that  she  acquires  afterwards  by  inheritance,  by  the  will 
of  any  deceased  person,  by  the  gift  of  any  one  except  her 
husband,  or  by  the  proceeds  of  her  business  or  labor,  consti- 
tutes her  separate  estate,  which  she  can  hold,  manage,  con- 


COLORADO.  81 

tract  in  regard  to,  and  sell  and  convey,  as  though  she  were 
unmarried,  and  without  her  husband's  consent.  Her  deed 
of  her  realty  will  convey  it  without  her  husband's  signature. 
She  may  dispose  of  half  her  property  by  will  without  her 
husband's  consent,  or  all  of  it  with  his  consent.  Her  prop- 
erty is  not  liable  for  his  debts  ;  nor  is  he  liable  for  her  ante- 
nuptial debts,  except  to  the  extent  of  any  property  which  he 
may  have  received  from  her.  Husband  and  wife  may  make 
all  manner  of  contracts  directly  with  each  other,  and  convey 
property  to  each  other.  She  may  become  surety  for  him. 
She  may  carry  on  any  trade  or  business,  and  sue  and  be 
sued  as  if  single,  a,nd  her  property  is  liable  on  judgments 
obtained  against  her.  A  woman  is  of  age  at  eighteen  for  all 
purposes. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  Neither  husband  nor  wife 
can  so  dispose  of  his  or  her  property,  real  or  personal,  by 
will,  as  to  deprive  the  surviving  widow  or  widower  of  more 
than  one  half  thereof,  except  that  the  wife  may  dispose  of 
all  her  property  if  the  husband  gives  his  written  consent. 
The  widow  may  choose  whether  she  will  take  the  provision 
made  for  her  by  her  husband's  will  or  take  one  half  his 
property.  If  there  is  no  will,  but  the  deceased  leaves  issue, 
the  surviving  husband  or  wife  takes  one  half  the  estate  5  but 
if  there  is  no  issue  and  no  will,  then  the  survivor  takes  the 
whole. 

DIVORCE. 

Causes  for  divorce  are  adultery;  bigamy;  impotency;  wil- 
ful desertion  for  one  year  without  reasonable  cause;  wilful 
desertion  and  departure  from  the  State  without  intention  of 
returning;  habitual  drunkenness  for  one  year;  conviction  of 


82  LAW   OF   HUSBAND    AND  WIFE. 

felony  or  other  infamous  crime;  extreme  cruelty;  failure  of 
husband  for  the  space  of  one  year,  being  in  good  bodily 
health,  to  make  a  reasonable  provision  for  the  support  of 
his  family.  Plaintiff  must  have  resided  one  year  in  this 
State  before  bringing  suit,  unless  the  offence  was  committed 
in  this  State,  or  was  committed  while  one  or  both  of  the 
parties  resided  in  this  State. 


CONNECTICUT. 

WIFE'S  LEGAL  STATUS. 

Two  entirely  different  and  distinct  codes  of  law  obtain  in 
this  State  concerning  married  women  and  the  relative  claims 
of  husband  and  wife.  One  applies  to  marriages  which  took 
place  before  April  20,  1877,  which  may  be  called  the  old 
law  ;  the  other  to  all  which  have  taken  place  since  that  date, 
and  to  those  cases  where  husband  and  wife,  though  married 
earlier,  have  by  a  written  contract  recorded  in  the  Probate 
Court  and  in  the  town  clerk's  office,  accepted  the  provisions 
of  the  new  law,  as  any  couple  may  do  who  wish  to  avail 
themselves  thereof. 

By  the  old  law,  the  husband  has  a  right  to  the  use  of  his 
wife's  real  estate  during  her  life,  and  curtesy  in  it  after  her 
death ;  but  it  cannot  be  taken  for  his  debts  during  the  life  of 
the  wife  or  of  a  child  of  the  marriage.  The  profits,  rents 
and  income  of  all  her  property,  real  and  personal,  are  his 
during  the  marriage,  but  cannot  be  taken  for  his  debts,  un- 
less they  are  contracted  for  the  support  of  his  wife  and 
children.  If  she  purchases  real  estate  during  the  marriage 
with  the  proceeds  of  her  personal  labor  or  services,  this  prop- 
erty, together  with  all  her  personal  property,  constitutes  her 


CONNECTICUT.  83 

separate  estate,  but  her  husband  is  her  trustee  (unless  an- 
other trustee  is  appointed)  to  care  for  this  separate  estate, 
which  is  subject  to  claims  for  the  support  of  herself  and  chil- 
dren, but  not  for  any  other  debts  incurred  by  him;  and  he 
cannot  sell  or  dispose  of  it  unless  she  joins  in  the  sale  or 
conveyance.  If  he  abandons  her,  he  loses  all  claim  to  her 
property  or  income,  and  the  wife  may  transact  business,  and 
sue  and  be  sued  as  if  unmarried;  and  if  the  abandonment 
continues  for  three  years,  she  may  obtain  leave  of  the  Supe- 
rior Court  to  convey  her  real  estate  without  her  husband's 
signature.  She  may  make  contracts  in  her  own  name,  buy 
goods  and  give  her  promissory  note  in  payment,  and  if  these 
contracts  and  purchases  are  for  the  benefit  of  her  family  or 
estate,  they  will  bind  her  separate  estate,  real  and  personal; 
otherwise  they  will  not. 

The  new  law  gives  to  husband  and  wife  no  interest  in  the 
property  of  each  other,  whether  acquired  before  or  after 
marriage,  except  on  the  death  of  one  of  the  parties,  as  will 
be  stated  later.  The  property  of  neither  is  liable  for  the 
debts  of  the  other,  but  that  of  both  is  liable  for  purchases 
made  by  either  for  the  joint  benefit  of  both  or  of  the  family, 
or  for  the  wife's  reasonable  apparel,  or  for  her  support  while 
abandoned  by  her  husband;  but  his  property  must  first 
be  applied  to  the  satisfaction  of  these  claims,  and  if  she  is 
compelled  to  pay  them  while  the  husband  has  property, 
she  may  sue  him  in  the  Court  of  Equity  to  recover  the 
amount  so  paid  by  her.  The  wife's  separate  estate  includes 
all  property,  real  and  personal,  owned  by  her  at  marriage 
or  acquired  later  in  any  way  whatever,  including  her  earn- 
ings; and  she  may  make  all  contracts  relating  thereto,  sue 
and  be  sued  concerning  it,  and  convey  her  real  estate  alone, 
as  if  unmarried. 


84  LAW  OF   HUSBAND   AND   WIFE. 

CLAIMS  ON  PROPERTY. 

By  the  old  law,  the  widower  has  curtesy  in  all  his  wife's 
real  estate,  whether  held  by  her  in  possession,  or  held  in 
trust  for  her.  But  the  wife  has  dower  only  in  such  real 
estate  as  her  husband  dies  possessed  of.  The  widow  of  a 
man  who  dies  without  a  will,  is  given  one  third  of  his  per- 
sonal property,  or  if  no  issue  survives,  one  half  of  it.  But 
the  estate  of  any  man  who  dies  without  issue  is  always  liable 
for  his  widow's  support  during  widowhood,  if  she  be  poor 
and  there  be  no  person  bound  to  support  her  who  is  of  suffi- 
cient ability  so  to  do,  and  all  persons  to  whom  the  estate 
descends  or  to  whom  it  is  given  by  the  husband's  will,  are 
liable  for  contribution,  pro  rata,  towards  her  support. 

By  the  new  law  (except  in  cases  where  either  party  has 
received  from  the  other,  by  a  written  contract  made  before 
or  after  marriage,  a  provision  intended  to  be  in  lieu  of  the 
share  given  by  the  statute  and  except  in  cases  where  aban- 
donment without  sufficient  cause  has  occurred  and  continued 
till  the  death  of  the  deceased),  the  surviving  husband  or  wife 
is  entitled  to  the  use  for  his  or  her  life  of  one  third  in  value 
of  all  property,  real  and  personal,  owned  by  the  deceased  at 
his  or  her  death,  subject  first  to  the  payment  of  one  third  of 
the  debts  due  from  the  estate.  This  one  third  interest  can- 
not be  taken  from  the  survivor  by  the  will  of  the  deceased. 
If  there  is  no  will,  then  this  one  third  is  given  absolutely 
instead  of  for  life;  and  if  no  issue  survives,  then  one  half 
absolutely,  instead  of  one  third.  If  there  is  a  will  which 
makes  a  provision  for  the  survivor,  he  or  she  may  elect 
whether  to  take  this  provision  or  the  one  third  life  interest, 
but  cannot  take  both  unless  the  will  clearly  shows  such 
an  intent. 


DAKOTA.  85 

DIVORCE. 

Causes  for  divorce  are  adultery;  fraud  in  the  marriage 
contract;  wilful  desertion  and  total  neglect  for  three  years; 
seven  years'  absence,  unheard  from;  intolerable  cruelty; 
habitual  intemperance;  imprisonment  for  life;  any  infamous 
crime  involving  a  violation  of  conjugal  duty  and  punishable 
by  imprisonment  in  the  State-prison.  Plaintiff  must  have 
resided  three  years  in  the  State,  unless  the  parties  had 
resided  here  together  while  married,  or  unless  the  cause  has 
arisen  since  the  plaintiff  lived  here,  or  unless  the  defendant 
has  resided  here  three  years  next  prior  to  the  petition.  A 
reasonable  part,  not  exceeding  one  third*  of  her  husband's 
estate  may  be  given  to  a  woman  at  divorce,  and  custody  of 
children  may  be  given  to  either  parent  in  the  discretion  of 
the  court. 

DAKOTA. 

WIFE'S  LEGAL  STATUS. 

A  RECENT  statute  in  Dakota  declares  that  a  married 
woman  shall  retain  the  same  legal  existence  after  marriage 
as  before,  and  shall  receive  the  same  protection  of  all  her 
rights  as  a  woman  which  her  husband  does  as  a  man, 
and  sliall  have  the  same  right  to  appeal  alone  to  the  court 
for  redress  or  protection  for  any  injury  to  her  reputation, 
person,  property,  or  character. 

A  wife  may  own  in  her  own  right,  property  of  all  kinds 
acquired  by  her  at  any  time  and  in  any  way,  as  though  un- 
married. She  may  sell  and  convey  it  or  dispose  of  it  by 
will;  and  she  may  make  contracts  of  all  kinds,  sue  arid  be 
sued  on  them,  give  promissory  notes,  and  enter  into  trade  or 
business  as  if  unmarried.  Husband  and  wife  may  contract 


86  LAW   OP   HUSBAND   AND  WIFE. 

directly  with  each  other  and  enter  into  business  relations 
with  each  other  or  with  any  one  else,  but  subject  to  the 
usual  rules  of  law  governing  the  transactions  of  persons  who 
stand  in  confidential  relations.  Neither  has  any  interest  in 
the  property  of  the  other  during  the  life  of  both,  but  neither 
can  be  excluded  from  the  other's  dwelling.  Neither  is  re- 
sponsible for  the  other's  debts,  whether  contracted  before  or 
after  marriage,  but  each  for  his  and  her  own ;  but  a  husband's 
property,  and  his  only,  is  liable  for  his  wife's  debts  for  neces- 
saries for  herself  and  family,  contracted  as  his  agent.  A 
wife's  earnings  cannot  be  taken  for  her  husband's  debts;  and 
if  she  is  living  apart  from  her  husband,  her  earnings  and 
those  of  their  minor  children  in  her  custody  are  her  separate 
property.  She  may  be  executrix  of  a  will,  but  not  adminis- 
tratrix of  an  estate.  She  may  dispose  of  all  her  property  by 
her  will,  without  her  husband's  signature.  A  woman's 
marriage  revokes  her  will  made  previously.  Women  are  of 
age  at  eighteen  for  all  purposes. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  unless  dower  was  restored  by 
the  act  of  Congress  of  March  3,  1887,  whereby  it  was  enacted 
that  a  widow  shall  have  the  right  of  dower  in  all  the  Terri- 
tories of  the  United  States.  Whether  dower  will  prevail  in 
future,  will  doubtless  be  settled  by  the  legislatures  of  the 
new  States  of  North  and  South  Dakota.  If  a  husband  or 
wife  die  without  a  will,  the  survivor  takes  one  half  of  all 
the  property  of  the  deceased,  if  there  is  no  issue,  or  if  there 
is  but  one  child  or  descendants  of  one  child;  if  more  than 
one,  then  the  widow  or  widower  takes  one  third.  If  no  de- 
scendants, parents,  brothers,  or  sisters  survive,  then  the  widow 
or  widower  takes  the  entire  estate.  If  the  husband  or  wife 


DAKOTA.  87 

die  leaving  a  will,  the  widow  or  widower  can  only  take,  as 
against  the  will,  the  homestead,  if  any,  for  his  or  her  life,  and 
such  personal  property  as  is  by  law  exempt  from  being  taken 
on  execution.  The  homestead,  which  may  belong  to  husband 
or  wife,  may  be  of  one  acre  in  extent  if  within  a  town  plat, 
or  one  hundred  and  sixty  acres  with  buildings  thereon,  if  not 
in  a  town  plat;  and  it  is  not  limited  in  value.  The  exemp- 
tion of  personal  property  is  very  liberal,  amounting  to  fifteen 
hundred  dollars'  worth  of  furniture,  merchandise,  money,  or 
other  property,  besides  one  hundred  dollars'  worth  of  books, 
all  clothing  of  the  family,  and  certain  other  specified  articles. 

DIVORCE. 

Causes  for  divorce  are  adultery;  extreme  cruelty;  convic- 
tion for  felony;  wilful  desertion  or  wilful  neglect  for  one 
year;  habitual  intemperance  for  one  year.  The  plaintiff 
must  have  been  a  resident  in  good  faith  of  Dakota  for 
ninety  days  next  preceding  the  commencement  of  the  ac- 
tion. If  an  unreasonable  lapse  of  time  has  occurred  be- 
tween the  cause  which  is  assigned  and  the  commencement 
of  the  action,  no  divorce  will  be  given.  The  court  may 
decree  that  the  husband  shall  provide  for  the  maintenance 
of  the  wife  and  children,  and  may  give  the  custody  of  the 
children  to  either  parent  in  its  discretion,  and  may  assign 
the  homestead  to  the  innocent  party. 

A  marriage  may  be  annulled  for  any  of  the  following 
causes  existing  at  the  time  of  the  marriage:  bigamy;  un- 
sound mind;  fraud,  force,  or  physical  incapacity;  and 
where  the  petitioner  was  under  the  age  of  consent  (eigh- 
teen for  males  and  fifteen  for  females),  and  the  marriage 
was  not  sanctioned  by  the  consent  of  parents  or  guardian. 


88  LAW   OF    HUSBAND   AND   WIFE. 

DELAWARE. 

WIFE'S  LEGAL  STATUS. 

BEFORE  April  9,  1873,  a  -woman's  personal  property  and 
the  profits  of  her  real  estate  went  to  her  husband  at  mar- 
riage. In  marriages  that  have  taken  place  subsequently  to 
that  date,  all  property,  real  and  personal,  belonging  to  the 
woman  at  marriage  constitutes  her  separate  estate,  together 
with  all  that  comes  to  her  after  the  marriage  from  any  per- 
son other  than  her  husband;  and  any  wife,  whenever  mar- 
ried, may  hold  as  her  separate  estate  whatever  property  has 
actually  come  into  her  separate  possession  in  any  way  ex- 
cept from  her  husband  since  the  above  date,  and  all  that 
may  come  to  her  in  the  future.  Her  property  shall  not  be 
liable  for  his  debts  nor  under  his  control;  but  it  is  liable 
for  her  own  debts,  whether  contracted  before  or  after  mar- 
riage. She  may  claim  her  earnings,  and  may  contract  and 
sue  and  be  sued  relative  to  her  earnings  and  her  separate 
estate,  and  may  give  a  good  bond  with  or  without  a  power 
of  attorney,  but  can  probably  bind  herself  by  no  other  con- 
tracts ;  but  it  has  not  been  judicially  determined  whether 
her  promissory  note  will  bind  her,  or  whether  she  can  trans- 
act business  like  a  single  woman.  She  cannot  convey  her 
real  estate  ualess  her  husband  joins  in  the  deed.  She  may 
make  a  will  of  all  her  property,  real  and  personal,  and  may 
act  as  executrix  or  administratrix. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  both  prevail  in  this  State ; 
but  if  the  husband  leaves  no  issue,  the  widow  takes  her  life 
interest  in  one  half  his  real  estate  instead  of  one  third  ; 
and  if  no  child  was  born  during  the  marriage,  so  that  the 


DELAWARE.  89 

widower  cannot  take  curfcesy  in  his  wife's  estate,  he  takes  a 
life  interest  in  one  half  her  estate  instead  of  the  whole; 
but  her  debts  must  in  this  case  be  first  settled  out  of  the 
estate. 

If  there  is  personal  property,  the  widower  takes  all  that 
his  wife  leaves,  if  she  has  not  disposed  of  it  by  her  will; 
and  the  widow  takes  one  third  of  her  husband's  personalty 
when  he  dies  without  a  will  but  leaving  issue,  and  one  half 
of  it  if  there  is  no  issue ;  the  whole,  if  he  leaves  no  kindred. 

DIVORCE. 

Causes  for  absolute  divorce  ar"e  adultery;  desertion  for 
three  years ;  habitual  drunkenness ;  impotency ;  extreme 
cruelty;  conviction  for  felony  after  marriage.  Divorce  ab- 
solute or  divorce  from  bed  and  board,  at  the  discretion  of 
the  court,  may  be  given  for  procurement  of  marriage  by 
fraud ;  lack  of  sufficient  age  of  either  party  at  time  of  mar- 
riage (eighteen  for  males  and  sixteen  for  females);  where 
the  marriage  has  not  been  voluntarily  ratified  after  both 
parties  have  attained  the  legal  age;  or  for  wilful  neglect  of 
husband  for  three  years  to  provide  his  wife  with  necessaries 
of  life  suitable  to  her  condition. 

If  an  inhabitant  of  this  State  goes  into  another  State  to 
obtain  a  divorce  for  a  cause  occurring  here,  or  for  a  cause 
which  would  not  be  sufficient  to  justify  a  divorce  under  the 
laws  here,  such  a  divorce  shall  be  of  no  force  in  this  State. 

The  court  may  give  the  wife  alimony ;  and  if  the  husband 
is  in  fault,  all  the  wife's  real  estate  is  restored  to  her,  and 
she  may  be  allowed  a  reasonable  share  out  of  her  husband's 
property,  real  and  personal;  and  if  the  wife  is  in  fault,  the 
whole  or  part  of  her  real  estate  may  be  restored  to  her,  and 
the  court  may,  in  its  discretion,  also  give  her  a  reasonable 
share  of  her  husband's  personal  property. 


90  LAW    OF    HUSBAND    AND    WIFE. 


DISTEICT   OF  COLUMBIA. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  belonging  to  a  woman  at 
marriage,  or  coming  to  her  afterward  in  any  way  except  by 
gift  or  conveyance  from  her  husband,  constitutes  her  sepa- 
rate property,  of  which  she  has  the  same  control  in  every 
way  as  if  she  were  single,  free  from  her  husband's  control  or 
debts.  She  may  make  a  will,  and  convey  her  realty  without 
her  husband's  consent  or  signature,  except  as  regards  realty 
acquired  by  her  previous  to  April  10,  1869.  She  may  bind 
herself  and  property  by  her  contracts,  and  may  sue  and  be 
sued  as  if  unmarried.  But  her  earnings  still  belong  to  her 
husband,  though  if  he  gives  them  to  her,  or  agrees  that  they 
shall  be  hers,  they  are  then  protected  from  his  subsequent 
creditors.  A  woman  may  make  a  will  of  real  and  personal 
property  at  the  age  of  eighteen  years.  Marriage  revokes  a 
will  previously  made. 

CLAIMS  ON  PROPERTY. 

Common  law  dower  prevails.  Also  curtesy  in  lands  ac- 
quired by  the  wife  before  April  10,  1869,  but  probably  not 
in  lands  acquired  since  that  date.  If  a  husband  dies  with- 
out a  will,  but  leaving  issue,  his  widow  takes  one  third  of 
his  personal  property;  if  he  leaves  no  issue,  but  leaves  a 
parent,  brother  or  sister,  nephew  or  niece,  the  widow  takes 
one  half;  if  no  such  kindred,  the  widow  takes  it  all.  If 
either  husband  or  wife  dies  without  a  will  and  without  kin- 
dred, the  widow  or  widower  takes  all  real  property  belong- 
ing to  the  deceased ;  or  if  dead,  then  it  goes  to  the  kindred 
of  the  previously  deceased  husband  or  wife. 


FLORIDA.  91 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery  ;  bigamy  ;  lunacy 
or  impotency  at  time  of  marriage.  Divorce  absolute  or 
from  bed  and  board,  at  the  discretion  of  the  court,  may  be 
granted  for  cruelty  endangering  life  or  health ;  reasonable 
apprehension  of  bodily  harm ;  wilful  desertion  and  abandon- 
ment for  uninterrupted  space  of  three  years.  If  the  cause 
occurred  outside  the  District,  the  plaintiff  must  have  lived 
here  for  two  years  next  preceding  suit.  The  court  may  give 
alimony  to  the  wife,  and  may  reserve  to  her  the  right  of 
dower  iu  her  husband's  estate,  in  its  discretion. 


FLORIDA. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  wife  at  mar- 
riage, or  lawfully  acquired  afterward  in  any  way,  constitutes 
her  separate  property;  and  it  is  not  liable  for  her  husband's 
debts  without  her  consent  formally  executed  in  writing  and 
acknowledged  like  a  deed  of  her  realty.  It  is  liable  for  her 
debts  contracted  for  the  benefit  of  this  separate  estate,  but 
not  for  necessaries  for  herself  and  family.  But  that  it  may 
be  thus  secured  to  herself,  and  free  from  her  husband's  cred- 
fitors,  it  must  be  inventoried  and  recorded  as  her  separate 
property  in  accordance  with  certain  statutory  requirements. 
Husband  and  wife  must  join  in  all  conveyances  and  sales  of 
her  property,  and  in  all  contracts  binding  upon  her  prop- 
erty, unless  she  is  a  free  trader,  and  she  must  acknowledge 
on  private  examination  that  she  executes  the  transaction 
without  compulsion  of  her  husband.  She  may  become  a  free 
dealer,  and  manage  and  control  her  estate  alone  as  if  ua- 


92  LAW   OP   HUSBAND    AND   WIFE. 

married,  by  obtaining  a  license  to  that  effect  from  the  Cir- 
cuit Court,  and  conforming  with  certain  formalities.  She 
may  make  a  will  of  all  property,  real  and  personal,  as  if 
unmarried. 

CLAIMS  ON  PROPERTY. 

Common  law  dower  prevails,  but  instead  of  her  dower  a 
•widow  may  elect  to  take  a  child's  share  in  both  realty  and 
personalty ;  that  is,  to  share  equally  with  the  children  and 
issue  of  any  deceased  child  who  survive  her  husband,  taking 
such  share  absolutely,  instead  of  for  life.  If  he  dies  without 
issue  and  without  a  will,  she  is  his  sole  heir.  If  a  wife  dies 
without  a  will,  her  husband  takes  a  child's  share  in  her  prop- 
erty ;  and  if  she  leaves  no  will  and  no  issue,  he  is  her  sole 
heir. 

DIVORCE. 

Causes  for  divorce  are  adultery ;  impotence ;  bigamy ;  ex- 
treme cruelty ;  habitual  indulgence  of  violent  and  ungovern- 
able temper;  habitual  intemperance;  wilful  and  continued 
desertion  for  one  year:  marriage  within  the  prohibited  de- 
grees of  relationship,  either  of  blood  or  marriage;  also  if  the 
other  party  has  obtained  a  divorce  elsewhere,  it  is  cause  for 
a  divorce  to  the  party  resident  in  Florida. 

Plaintiff  must  have  resided  in  the  State  for  two  years  next 
prior  to  suit.  Court  may  provide  for  wife  out  of  the  hus- 
band's estate  on  giving  a  decree  of  divorce. 

Instead  of  applying  for  a  divorce,  a  wife  may  bring  suit 
for  alimony  and  separation,  if  her  husband  has  deserted  her 
for  one  year,  or  has  lived  in  open  or  avowed  adultery  for 
three  months,  or  has  treated  her  cruelly,  or  has  committed 
any  other  act  which  is  cause  for  divorce  in  this  State. 


GEORGIA.  93 

GEORGIA. 

WIFE'S  LEGAL  STATUS. 

ALL  property  owned  by  a  woman  at  marriage,  or  acquired 
afterward  in  any  way,  constitutes  her  separate  estate,  free 
from  the  debts  or  control  of  her  husband,  but  liable  for  her 
own  debts,  except  those  for  the  support  of  herself  and  family 
when  she  contracts  them  as  her  husband's  agent.  She  may 
make  contracts  and  sue  and  be  sued  concerning  her  estate  as 
if  unmarried ;  but  she  cannot  bind  herself  as  surety  for  her 
husband,  nor  can  she  assume  his  debts,  nor  can  she  sell  her 
property  to  her  husband  except  by  order  of  the  Superior 
Court.  She  may  become  a  free  trader  by  consent  of  her 
husband  published  for  one  month  in  a  newspaper,  and  is 
then  liable  on  all  contracts  as  if  single.  A  woman  may  be 
executrix  or  administratrix,  and  her  marriage  does  not  affect 
her  powers  as  such.  Any  person,  married  or  single,  may 
make  a  will  of  real  and  personal  property  at  the  age  of  four- 
teen years.  Marriage  revokes  a  will  previously  made. 

CLAIMS  ON  PROPERTY. 

A  widow  may  take  dower  in  the  real  estate  of  which  her 
husband  died  possessed.  But  instead  of  this,  if  her  husband 
died  without  a  will,  the  widow  may  take  a  child's  share  of 
both  real  and  personal  estate  absolutely,  unless  there  are 
more  than  five  children,  or  descendants  thereof,  in  which 
case  the  widow  may  take  one  fifth  of  all  the  property  ab- 
solutely. If  the  wife  dies  without  a  will,  the  widower  may 
take  a  child's  share  of  her  estate.  If  either  husband  or  wife 
dies  without  a  will,  and  leaving  no  issue,  then  the  surviving 
widow  or  widower  is  sole  heir.  A  widow  and  her  children 


94  LAW    OF    HUSBAND    AND    WIFE. 

are  entitled  to  a  twelve-month's  support  out  of  her  husband's 
property  after  his  death,  in  preference  to  all  other  claims  ou 
the  estate.  A  husband  cannot  leave  more  than  one  third  of 
his  property  by  his  will  to  any  religious,  charitable,  or  public 
purpose,  to  the  exclusion  of  his  widow  or  children. 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery;  cruel  treatment; 
habitual  intoxication;  intermarriage  between  persons  within 
the  prohibited  degrees  of  relationship  by  blood  or  marriage ; 
mental  incapacity  or  impotency  at  time  of  marriage;  fraud, 
force,  menace,  or  duress  in  obtaining  marriage ;  wilful  de- 
sertion for  three  years;  conviction  and  imprisonment  in  peni- 
tentiary for  term  of  two  years  or  more  for  crime  involving 
moral  turpitude ;  and  to  the  husband  for  pregnancy  of  the 
wife  at  marriage  by  another,  and  unknown  to  him. 

Trial  is  by  jury,  and  the  verdict  may  be  for  a  total  or 
partial  divorce.  Cruel  treatment  or  habitual  intoxication  are 
grounds  either  for  total  divorce  or  partial  divorce,  that  is, 
from  bed  and  board,  at  the  discretion  of  the  jury.  A  total 
divorce  will  only  be  given  if  two  juries,  at  different  terms 
of  court,  unite  on  the  verdict  in  favor  of  it.  The  second 
jury  will  also  determine  what  division  shall  be  made  of 
the  property. 

IDAHO  TERRITORY. 

WIFE'S  LEGAL  STATUS. 

THE  community  system  prevails  here.  All  property  owned 
by  either  husband  or  wife  at  marriage,  or  acquired  afterward 
by  gift,  by  will,  or  by  inheritance,  constitutes  the  separate 
property  of  each.  All  acquired  otherwise  is  the  common 


IDAHO    TERRITORY.  95 

property  of  both,  but  the  husband  has  the  exclusive  manage- 
ment of  it.  The  wife's  separate  estate  must  be  inventoried 
and  recorded.  The  husband  also  manages  the  wife's  estate 
during  the  marriage ;  but  he  cannot  sell  or  encumber  it  unless 
she  joins  in  the  deed  or  sale,  though  he  may  sell  the  common 
estate  alone.  If  he  mismanages  or  wastes  her  property,  the 
court  will  give  its  control  to  a  trustee.  Each  is  liable  for 
his  and  her  own  debts,  but  not  for  those  of  the  other. 
She  may  make  contracts  concerning  her  separate  estate. 
She  may  also  become  a  sole  trader  by  decree  of  the  District 
Court,  and  she  may  then  carry  on  business  as  if  unmarried, 
and  may  also  be  held  responsible  for  the  maintenance  of  her 
children.  She  may  make  a  will  of  all  her  property  at  eigh- 
teen years  of  age. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  unless  dower  was  restored 
by  the  act  of  Congress  of  March  3,  1887,  whereby  it  was 
enacted  that  a  widow  shall  have  the  right  of  dower  in  all 
the  Territories  of  the  United  States.  If  the  wife  dies,  the 
widower  takes  all  the  community  property  without  adminis- 
tration. If  the  husband  dies,  the  widow  takes  one  half  the 
community  property.  If  either  party  dies  without  a  will,  the 
surviving  widow  or  widower  takes  one  third  of  all  property 
left  by  the  deceased ;  if  there  is  but  one  child,  or  descend- 
ants of  one,  the  survivor  takes  one  half;  if  no  issue  or  parent 
or  brother  or  sister  be  left,  then  the  survivor  takes  it  all. 

DIVORCE. 

Causes  for  divorce  are  adultery ;  extreme  cruelty ;  wilful 
desertion  for  one  year;  wilful  neglect  or  habitual  intemper- 
ance for  one  year;  or  conviction  of  a  felony.  The  plaintiff 
must  have  resided  here  six  months  before  bringing  suit. 


96  LAW  OF   HUSBAND   AND   WIFE. 


ILLINOIS. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at 
marriage,  and  all  acquired  thereafter  by  inheritance,  by  gift, 
or  by  purchase,  is  her  separate  property,  which  she  may  hold 
in  her  own  right,  and  may  manage,  sell,  and  convey  to  the 
same  extent  and  in  the  same  way  that  the  husband  can  do 
with  his  property.  But  if  a  transfer  of  property  is  made 
directly  between  husband  and  wife,  it  is  not  valid  as  regards 
third  persons  unless  such  transfer  is  in  writing  and  acknowl- 
edged and  recorded.  And  she  cannot  enter  into  a  business 
partnership  without  her  husband's  consent,  unless  he  has 
abandoned  her,  or  is  insane,  idiotic,  or  imprisoned.  A  wife 
may  make  all  manner  of  contracts,  sue  and  be  sued  alone, 
and  control  her  own  earnings.  She  may  make  a  will  in  the 
same  manner  and  to  the  same  extent  as  a  married  man  may 
do.  Neither  is  liable  for  the  debts  of  the  other,  but  the 
property  of  both  may  be  chargeable  with  the  expenses  of 
the  family  and  education  of  the  children.  If  either  party 
abandons  the  other  for  a  year  without  providing  for  the 
support  of  the  family,  or  is  imprisoned,  idiotic,  or  insane, 
the  court  may  place  his  or  her  property  in  the  control  of 
the  other,  and  subject  it  to  the  support  of  the  family  and 
payment  of  his  or  her  debts.  A  married  woman  may  act  as 
executrix  or  administratrix.  Marriage  revokes  a  will  pre- 
viously made.  Women  are  of  age  at  eighteen  for  all 
purposes. 

CLAIMS  ox  PROPERTY. 

There  is  no  curtesy.  Husband  and  wife  have  an  equal 
interest  in  the  real  estate  of  each  other,  which  interest  is 


ILLINOIS.  97 

that  of  dower  ;  that  is,  one  third  for  life  of  all  realty  belong- 
ing to  the  deceased  during  the  marriage,  including  equitable 
estates,  and  estates  which  have  been  contracted  for  and  the 
title  to  which  is  capable  of  being  completed.  Where  the 
deceased  leaves  no  will,  the  surviving  widow  or  widower 
takes  one  third  of  the  personalty  absolutely,  and  the  dower 
interest  just  named  in  the  realty,  if  there  be  issue  of  the 
deceased ;  but  if  there  be  no  issue,  then  the  widow  or  wid- 
ower takes  one  half  absolutely  of  the  realty,  and  all  of  the 
personalty.  If  there  be  no  kindred,  the  widow  or  widower 
is  sole  heir.  The  "  widow's  award,"  which  must  be  paid 
out  of  the  estate  of  a  deceased  husband  in  preference  to  any 
other  claim  except  funeral  expenses,  consists  of  certain  spe- 
cific articles  aggregating  in  value  to  about  twelve  or  fifteen 
hundred  dollars,  the  amount  being  graded  somewhat  accord- 
ing to  her  condition  in  life;  or  she  may  take  the  value  of 
such  articles  in  money. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  bigamy;  de- 
sertion or  drunkenness  for  two  years ;  an  attempt  on  the 
life  of  the  plaintiff,  by  poison  or  other  means  showing  mal- 
ice; extreme  and  repeated  cruelty;  conviction  of  infamous 
crime.  Marriages  between  cousins  of  the  first  degree  are  void 
since  1887.  Plaintiff  must  have  resided  in  the  State  one  year, 
unless  the  cause  occurred  in  this  State,  or  while  one  or  both 
the  parties  resided  in  the  State.  Alimony  and  counsel  fees 
may  be  given  the  wife,  also  custody  of  children,  with  an  order 
on  their  father  for  their  support.  A  woman  who  is  without 
means  may  prosecute  a  libel  for  divorce  without  payment  of 
costs  or  fees  to  attorneys.  A  woman  who,  without  her  fault, 
lives  apart  from  her  husband,  may  bring  an  action  in  equity 
against  him  for  separate  support  instead  of  for  divorce. 


98  LAW   OF   HUSBAND    AND   WIFE. 

INDIANA. 

•   WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at 
marriage,  and  all  acquired  by  her  afterwards  in  any  way, 
constitutes  her  separate  estate,  free  from  her  husband's  con- 
trol or  debts,  and  she  may  bargain,  sell,  and  convey  it  as  if 
single,  except  that  she  cannot  convey  her  real  estate  without 
her  husband's  signature.  If  he  has  abandoned  her,  or  is  of 
unsound  mind  or  in  prison,  she  may  apply  to  the  court  for 
leave  to  convey  her  land  alone  and  to  make  contracts  as  if 
single.  In  any  case  she  may  make  contracts  and  sue  and  be 
sued  concerning  her  separate  estate.  But  she  cannot  enter 
into  any  contract  of  suretyship,  whether  as  indorser,  guaran- 
tor, or  otherwise,  and  she  cannot  mortgage  her  property  as 
security  for  her  husband's  debts.  Contracts  directly  be- 
tween husband  and  wife  will  probably  be  upheld  by  the 
courts.  She  may  carry  on  any  trade  or  business  alone,  and 
the  profits  or  her  earnings  are  her  own,  free  from  her  hus- 
band's creditors.  Her  husband  is  not  liable  for  debts  con- 
tracted by  her  in  her  trade  or  business  or  concerning  her 
estate.  She  is  entitled  to  the  same  exemption  of  property 
from  seizure  and  sale  for  her  separate  debt  as  are  household- 
ers ;  that  is,  to  the  amount  of  six  hundred  dollars.  She  may 
make  a  will  as  if  unmarried.  She  may  act  as  executrix  or 
administratrix  with  her  husband's  written  consent.  Mar- 
riage revokes  a  woman's  will  previously  made. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  A  widow  takes  one  third 
of  her  husband's  real  estate  in  fee  absolutely,  whether  he 


INDIANA.  99 

leaves  a  will  or  not,  free  from  the  demands  of  his  creditors. 
Alter  payment  of  debts,  she  also  takes  one  third  of  the 
personalty.  If  he  leaves  no  will,  and  but  one  child  or  de- 
scendants of  but  one,  the  widow  takes  one  half  both  of  the 
real  and  personal  estate.  In  all  cases  the  widow  is  entitled 
to  five  hundred  dollars  out  of  the  estate  without  accounting, 
and  if  the  entire  estate  does  not  amount  to  more  than  this 
sum,  no  court  fees  need  be  paid  out  of  it  for  administration. 
If  a  widow  marries  again,  she  cannot  convey  real  estate 
•which  came  from  her  first  husband,  if  children  of  her  first 
marriage  survive,  unless  they  are  adults  and  join  therein. 
If  a  widower  marries  again,  and  children  by  his  first  mar- 
riage survive  him,  his  widow  takes  only  a  life  estate  in 
his  realty,  unless  she  also  has  surviving  children  by  him. 
A  widow  in  any  case  may  occupy  the  dwelling  and  forty 
acres  of  laud  of  her  deceased  husband  free  of  rent  for  one 
year. 

If  a  wife  dies,  the  widower  takes  one  third  of  her  real  and 
personal  estate  in  fee  absolutely,  whether  she  leaves  a  will 
or  not,  and  without  regard  to  its  amount.  If  either  party 
dies  leaving  no  will  and  no  issue,  but  leaving  a  parent,  three 
fourths  of  all  his  or  her  property,  real  and  personal,  goes  to 
the  widow  or  widower,  unless  the  whole  does  not  exceed  one 
thousand  dollars,  when  it  all  goes  to  the  widow  or  widower. 
And  if  no  parent  survives,  then  the  widow  or  widower  takes 
it  all  without  regard  to  the  amount. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impoteney;  abandonment 
for  two  years ;  cruel  and  inhuman  treatment;  habitual  drunk- 
enness; conviction,  subsequent  to  the  marriage,  of  an  in- 
famous crime;  failure  of  husband  for  two  years  to  make 


100  LAW    OF    HUSBAND    AND    WIFE. 

reasonable  provision  for  his  family.  Plaintiff  must  have 
been  a  bona  fide  resident  of  the  State  for  two  years  and  of 
the  county  for  six  months  preceding  suit.  The  party  ob- 
taining the  divorce  cannot  marry  again  within  two  years, 
that  length  of  time  being  allowed  the  defendant  within 
which  to  open  up  the  decree  for  any  just  cause. 

Marriages  which  are  prohibited  by  law  on  account  of  too 
near  relationship  by  blood  or  marriage,  difference  of  color, 
or  bigamy,  are  void  without  divorce  if  they  were  solemnized 
within  this  State. 


IOWA. 

WIFE'S  LEGAL  STATUS. 

A  MARRIED  woman  may  hold  as  her  separate  property  all 
real  and  personal  estate  owned  at  marriage  or  afterwards 
acquired  in  any  way,  and  she  may  manage,  sell,  and  convey 
the  same  just  as  the  husband  may  do  with  his.  She  may 
make  a  will  of  all  her  property,  subject  only  to  the  claim  of 
her  husband  which  she  cannot  defeat;  nor  can  he,  by  his 
will,  defeat  her  claim  on  his  property  if  she  survives  him. 
Her  wages  are  her  own.  She  may  make  contracts  of  all 
kinds,  and  may  sue  and  be  sued  as  if  unmarried.  Neither 
husband  nor  wife  is  liable  for  the  debts  of  the  other,  incurred 
before  or  during  marriage.  Expenses  of  the  family  and 
education  of  the  children  is  chargeable  upon  the  property  of 
either  husband  or  wife  or  both.  Both  parents  are  equally 
entitled  to  the  care  and  custody  of  the  children.  Contracts 
of  all  kinds  and  conveyances  of  property  directly  between 
husband  and  wife  are  binding,  and  they  may  form  a  busi- 
ness partnership  together.  A  married  woman  may  act  as 
executrix  or  administratrix  A  woman  is  of  age  at  eighteen; 


IOWA.  101 

but  minors  may  become  of  age  by  marriage,  which  is  valid 
if  the  parties  to  it  are  sixteen  and  fourteen  years  of  age 
respectively. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  The  surviving  husband  or 
wife  is  entitled  to  an  equal  share  in  the  property  of  the 
other,  namely,  one  third  absolutely  of  all  real  estate  pos- 
sessed-by  the  deceased  during  the  marriage,  which  had  not 
been  sold  to  satisfy  any  judicial  decree,  and  the  right  to 
which  had  never  been  legally  relinquished  by  the  survivor. 
One  third  of  the  personalty  of  which  the  deceased  was  pos- 
sessed at  death,  after  payment  of  debts,  also  goes  to  the  sur- 
vivor. If  no  issue  survives,  then  the  widow  or  widower 
takes  one  half  of  the  entire  estate  instead  of  one  third. 

DIVORCE. 

Causes  for  divorce  are  adultery;  desertion  without  reason- 
able cause  for  two  years ;  conviction  of  felony  after  marriage ; 
habitual  drunkenness  contracted  after  marriage;  inhuman 
treatment  endangering  life;  and  in  favor  of  the  husband  for 
pregnancy  of  the  wife  by  another  at  time  of  marriage,  un- 
known to  the  husband,  unless  he  also  had  an  illegitimate 
child  living  at  time  of  the  marriage  unknown  to  the  wife. 

Marriage  may  also  be  annulled  for  impotency,  insanity  or 
idiocy ;  when  prohibited  by  law  as  being  within  the  pro- 
hibited degrees  of  relationship  or  for  other  reasons  ;  and  for 
bigamy,  except  that  if  the  parties  have  continued  to  live 
together  after  the  death  of  the  former  husband  or  wife,  the 
marriage  thereby  becomes  valid. 

Plaintiff  must  have  resided  one  continuous  year  in  the 
State,  unless  the  defendant  is  also  a  resident  and  has  beeu 


102  LAW   OF    HUSBAND   AND   WIFE. 

served  with  personal  notice  of  the  petition.  The  court  may  , 
make  such  decrees  as  in  its  discretion  seem  proper  in  rela- 
tion to  the  children  and  property  of  the  parties,  and  the 
maintenance  of  the  wife,  and  the  guilty  party  forfeits  all 
rights  acquired  by  the  marriage. 


KANSAS. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  belonging  to  a  woman  at 
marriage,  and  all  coming  to  her  afterwards  in  any  way  except 
by  gift  from  her  husband,  is  her  own,  free  from  his  control 
or  debts.  She  may  contract,  and  sue  and  be  sued,  and  may 
sell  and  convey  her  property  in  the  same  manner  and  with 
the  same  effect  as  if  she  were  unmarried.  She  may  enter 
into  any  trade  or  business  as  if  unmarried  and  the  proceeds, 
or  the  wages  of  her  labor  are  her  own.  She  may  dispose  of 
her  property  by  will  to  the  same  extent  and  executed  in  the 
same  manner  as  a  married  man  may  do,  but  neither  husband 
nor  wife  can  by  will  deprive  the  other  of  more  than  half  his 
or  her  property  unless  the  consent  of  the  wife  or  husband  to 
the  will  be  given  in  writing  executed  in  the  presence  of  two 
witnesses.  Marriage  of  a  man  or  woman  revokes  a  will 
previously  made. 

Women  are  of  age  at  eighteen.  Women  may  vote  at  all 
municipal  elections  and  are  eligible  to  all  municipal  offices. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  One  half  of  all  real  and 
personal  estate  in  which  the  deceased  husband  or  wife  had  a 
legal  or  equitable  interest  during  the  marriage,  and  which  is 
not  needed  for  payment  of  debts,  and  has  not  been  sold  on 


KENTUCKY.  103 

any  judicial  process,  goes  in  fee  absolutely  to  the  surviving 
widow  or  widower,  despite  any  will  of  the  deceased  to  the 
contrary.  If  husband  or  wife  dies  leaving  no  will  and  no 
issue,  then  the  4  widow  or  widower  takes  the  entire  estate, 
real  and  personal,  in  fee.  The  homestead,  actually  occupied 
by  the  family,  and  such  personal  property  as  is  exempt  by 
law  from  attachment  for  debt,  goes  to  the  widow  and  children, 
or  either  of  them,  in  preference  to  claims  of  creditors. 

DIVORCE. 

Causes  for  divorce  are,  adultery;  bigamy;  impotency;  one 
year's  abandonment;  extreme  cruelty;  habitual  drunken-  . 
ness ;  conviction  of  felony ;  gross  neglect  of  duty ;  fraud  in 
the  marriage  contract;  and  in  favor  of  the  husband  for 
pregnancy  of  the  wife  by  another  at  time  of  marriage,  un- 
known to  him.  Plaintiff  must  have  resided  in  the  State  one 
year.  Neither  party  can  marry  again  till  six  months  after 
date  of  divorce,  within  which  time  proceedings  may  be  taken 
for  any  suitable  reason  to  reverse  the  decree.  Alimony  and 
custody  of  children  may  be  given  to  the  wife  in  the  discretion 
of  the  court. 

The  wife  may  bring  an  action  against  her  husband  for 
alimony  simply,  without  divorce. 


KENTUCKY. 

WIPE'S  LEGAL  STATUS. 

A  MARRIED  woman  can  only  hold  such  property  as  has 
been  put  in  trust  for  her  separate  use.  This  constitutes 
her  equitable  separate  estate,  and  the  doctrines  of  equity 
apply  to  it,  but  her  wages  and  earnings  are  her  own.  The 
husband  has  the  use  of  his  wife's  real  estate  and  may  collect 


104  LAW   OF   HUSBAND   AND   WIPE. 

the  rents  and  lease  it,  though  not  for  a  longer  term  than 
three  years.  She  cannot  convey  it  unless  he  joins  in  the 
deed.  Her  estate,  or  the  rents  and  profits  from  it,  are  not 
liable  for  her  husband's  debts,  but  are  liable  for  her  debts 
contracted  before  marriage,  and  for  such  debts  for  neces- 
saries for  herself  and  family,  husband  included,  contracted 
after  marriage  as  are  proved  by  a  written  agreement  signed 
by  her.  The  husband  is  liable  for  antenuptial  debts  of  his 
wife  to  the  extent  of  property  which  he  receives  from  her,  but 
no  further.  Except  for  necessaries,  a  wife  cannot  make 
contracts  binding  on  her  separate  property,  unless  the  court 
has  authorized  her  to  transact  business  in  her  own  name, 
which  it  may  do  on  petition  by  husband  asid  wife;  and  a 
•wife  may  also  'contract  as  if  single,  if  the  husband  has 
abandoned  her,  or  is  in  the  penitentiary  for  an  unexpired 
term  of  more  than  one  year,  or  has  left  the  State  without 
making  provision  for  her  maintenance,  or  if  she  has  come  to 
live  in  the  State  without  her  husband.  She  may  make  a 
will  of  her  personal  property  if  her  husband  gives  his  written 
consent  to  the  will.  She  may  make  a  will  disposing  of  real 
property  which  is  held  in  trust  for  her,  if  the  instrument 
creating  the  trust  provides  that  she  may  do  so.  She  cannot 
act  as  executrix  or  administratrix. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  in  the  real  estate  of  a 
deceased  husband  or  wife  prevail.  The  husband  takes  all 
the  personalty  of  which  his  wife  dies  possessed  and  which  is 
not  held  in  trust  for  her,  unless  he  has  given  his  written 
consent  to  her  will  disposing  of  it  otherwise,  and  he  may 
revoke  such  consent  at  any  time  before  the  will  is  probated. 
The  widow  takes  one  third  her  deceased  husband's  person- 
alty; or  if  no  issue  survives,  one  half  of  it. 


KENTUCKY.  105 

DIVORCE. 

Causes  for  divorce  are,  impotency;  and  living  entirely 
separate  for  five  years  next  before  the  application.  Also  to 
the  party  not  in  fault  for  living  in  adultery  with  another; 
abandonment  for  one  year;  conviction  of  felony  in  or  out  of 
the  State ;  loathsome  disease  concealed  at  marriage  or  con- 
tracted afterwards;  force,  duress,  or  fraud  in  the  marriage 
contract;  uniting  with  religious  society  forbidding  marriage. 
Also  to  the  wife  when  not  in  like  fault  for  confirmed  habit  of 
drunkenness  continued  one  year  coupled  with  wasting  of  his 
estate  and  failure  to  provide  suitable  maintenance  for  wife 
and  children;  such  habitual  cruel  and  inhuman  treatment 
for  six  mouths  as  indicates  a  settled  aversion  and  tends  to 
destroy  permanently  her  peace  and  happiness;  such  cruel 
beating  or  injury  or  attempt  at  injury  as  indicates  an  out- 
rageous and  ungovernable  temper  and  probable  danger  to 
her  life  or  of  bodily  injury.  Also  to  the  husband  for  wife's 
pregnancy  at  marriage  by  another,  unknown  to  the  husband; 
adultery,  or  such  lewd  behavior  as  proves  the  wife  to  be  un- 
chaste; and  when  the  husband  is  not  in  like  fault,  habitual 
drunkenness  for  one  year.  The  court  may  give  divorce  from 
bed  and  board  for  any  cause  it  may  deem  sufficient. 

Plaintiff  must  have  resided  a  year  in  the  State.  The 
wife's  property  is  restored  to  her  at  divorce;  and  if  her 
estate  is  insufficient  for  her  support,  an  equitable  provision 
may  be  made  for  her  out  of  her  husband's  property,  if  she 
is  the  innocent  party. 


106  LAW   OF   HUSBAND   AND   WIFE. 

LOUISIANA. 

WIFE'S  LEGAL  STATUS. 

THE  community  system  prevails  here,  but  with  features 
peculiar  to  the  State  of  Louisiana,  where,  with  some  changes, 
the  Code  Napoleon  is  still  the  basis  of  the  laws.  Only  the 
briefest  idea  of  the  marital  relation  can  be  given  here. 

All  property  owned  by  either  husband  or  wife  at  marriage 
is  the  separate  property  of  each,  but  all  acquired  during 
marriage  by  either,  together  with  the  earnings  of  both  and 
the  income  from  the  separate  property  of  both,  constitutes 
the  common  or  partnership  property,  which  is  liable  for  all 
household  expenses,  and  is  managed  by  the  husband,  though 
he  canntjt  defraud  her  of  her  share.  If  a  wife  fears  that 
her  dowry  is  in  danger,  owing  to  mismanagement  by  her 
husband  or  disorder  of  his  affairs,  she  may  petition  the  court 
for  a  separation  of  property,  and  if  this  be  granted,  she 
must  be  responsible  in  proportion  to  her  property  and  that 
of  her  husband,  for  household  expenses  and  education  of  the 
children ;  she  may  even  be  obliged  to  bear  these  expenses 
alone,-if  her  husband  has  no  means.  The  separate  property 
of  each  is  liable  for  the  debts  of  each,  contracted  before  or 
after  marriage.  She  cannot  convey  her  property  or  mortgage 
it  without  his  consent.  She  cannot  bind  herself  or  her 
property  for  his  debts.  She  can  only  make  contracts  when 
authorized  by  him,  unless  she  is  a  public  merchant.  Husband 
and  wife  may  agree  together  that  there  shall  be  no  com- 
munity property,  in  which  case  each  holds  and  controls  his 
and  her  own  separate  property  and  manages  the  same  alone. . 
A  married  woman  may  make  a  will.  With  her  husband's 
consent,  she  may  act  as  executrix.  But  no  woman  can 
witness  a  will. 


LOUISIANA.  107 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  At  death  of  either  husband 
or  wife,  the  survivor  takes  half  the  community  property  out- 
right; and  if  the  deceased  left  a  will,  the  other  half  goes 
according  to  the  will ;  or  if  there  is  lawful  issue  or  a  parent 
or  grandparent,  the  half  goes  to  such  heirs  or  heir;  but  if 
not,  then  this  half  also  goes  to  the  widow  or  widower  for  her 
or  his  life.  If  a  widow  or  widower  with  children,  marries 
again,  she  or  he  can  give  to  such  second  husband  or  wife, 
either  by  will  at  death  or  by  gift  during  life,  only  one  third 
of  her  or  his  property.  If  the  wife  brought  no  dowry  or  an. 
inconsiderable  one  compared  with  her  husband's  property,  if 
either  dies  rich,  leaving  the  survivor  poor,  such  survivor  may 
take  what  is  called  the  "  marital  portion,"  out  of  the  sepa- 
rate estate  of  the  other;  that  is,  one  fourth  absolutely  of  the 
entire  property  of  deceased,  if  there  are  no  children;  if  there 
are  not  more  than  three  children,  this  portion  is  only  for 
life;  if  there  are  more  than  three  children,  the  portion  which 
can  be  taken  is  only  a  child's  share  for  life;  and  this  portion 
must  include  any  provision  that  may  have  been  made  for 
the  survivor  by  the  will  of  the  deceased. 

DIVORCE. 

Causes  for  immediate  divorce  are  adultery  and  sentence 
to  infamous  punishment.  For  the  other  causes,  namely, 
such  habitual  intemperance,  excess,  cruel  treatment  or  out- 
rages as  renders  living  together  insupportable;  also  public 
defamation,  abandonment  for  five  years,  or  attempts  on  the 
life  of  the  other,  a  decree  of  separation  from  bed  and  board 
may  be  given,  which  may  be  followed  by  a  decree  of  absolute 
divorce  one  year  later  if  no  reconciliation  has  taken  place 
meanwhile.  Divorce  dissolves  the  community  property  and 


108  LAW   OF   HUSBAND   AND   WIFE. 

each  party  takes  back  the  property  which  he  and  she  brought 
into  the  marriage,  together  with  one  half  the  community  prop- 
erty after  payment  of  community  debts.  Marriages  between 
•whites  and  negroes  to  the  third  generation  are  void. 


MAINE. 

WIFE'S  LEGAL  STATUS. 

A  MARRIED  woman  may  hold  as  her  own  all  property 
belonging  to  her  at  marriage,  or  coming  to  her  afterwards  in. 
any  way;  and  she  may  make  all  contracts;  sue,  and  be  sued; 
manage,  sell,  and  convey  her  property  or  devise  it  by  will,  as 
if  unmarried,  except  real  estate  that  has  come  to  her  directly 
from  her  husband,  and  which  is  not  in  payment  of  a  genuine 
debt  actually  due  from  him.  Such  real  estate  cannot  be 
conveyed  by  her  unless  he  joins  in  the  deed.  And  if  he 
gives  her  property,  without  a  valuable  consideration  from 
her  in  return,  his  previous  creditors  may  take  it  in  payment 
of  the  claims  due  them.  If  her  husband  deserts  her  and 
leaves  the  State,  she  may  be  empowered  by  the  court  to 
receive  and  use  his  personal  property.  Her  estate  is  liable 
for  her  debts  but  not  for  his.  She  may  carry  on  any  trade 
or  business  on  her  own  account. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy.  The  claim  of  husband  and  wife  on 
the  real  estate  of  the  other  is  the  same,  namely,  —  the  sur- 
vivor takes  one  third  for  life,  or  if  there  is  no  issue,  one  half. 
If  no  kindred  survives  and  there  is  no  will,  all  the  property 
of  the  deceased  goes  to  the  widow  or  widower.  If  there  is 
no  will,  one  third  of  the  personal  property  goes  to  widow 
or  widower  if  there  is  is:  ue ;  if  no  issue,  then  one  half. 


MARYLAND.  109 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  extreme 
cruelty;  utter  desertion  for  three  consecutive  years;  gross 
and  confirmed  habits  of  intoxication;  cruel  and  abusive 
treatment ;  and  in  favor  of  the  wife  where  the  husband, 
being  of  sufficient  ability,  grossly  or  wantonly  and  cruelly 
jef uses  or  neglects  to  provide  suitable  maintenance  for  her. 
The  parties  must  have  been  married  in  this  State,  or  lived 
here  after  marriage,  or  the  plaintiff  must  have  lived  here 
when  the  cause  occurred,  or  must  have  resided  here  one 
full  year  before  bringing  suit.  The  wife  may  have  alimony, 
and,  if  innocent,  may  have  dower.  The  court  may  decree 
the  custody  of  children  in  its  discretion.  Marriages  pro- 
hibited by  law  are  void ;  and  a  marriage  becomes  void  when 
one  of  the  parties  is  sentenced  and  imprisoned  for  life. 

MARYLAND. 

WIPE'S  LEGAL  STATUS. 

ALL  property  belonging  to  a  wife  at  marriage,  or  acquired 
by  her  afterwards  in  any  way  except  from  her  husband  in 
fraud  of  his  creditors,  including  her  earnings,  is  her  own 
and  may  be  managed  by  her  as  if  single,  without  the  inter- 
vention of  a  trustee;  it  is  liable  for  her  own  debts  but  free 
from  those  of  her  husband.  She  may  contract,  sue,  and  be 
sued,  and  carry  on  business  alone.  She  may  make  a  will  of 
all  her  property  as  if  single,  except  of  property  owned  by 
her  before  1860,  if  she  was  married  before  that  time;  but 
she  cannot  convey  her  real  estate  during  life  without  her 
husband's  joinder  in  the  deed.  Women  are  of  age  at  eigh- 
teen years  so  far  as  to  demand  their  property  from  their 
guardians,  and  to  make  a  valid  will. 


110  LAW   OP   HUSBAND    AND   WIFE. 

CLAIMS  ON  PROPERTY. 

Dower  and  curtesy  attach  to  equitable  interests  in  prop- 
erty as  well  as  to  property  actually  in  possession  during 
marriage ;  but  it  seems  that  a  wife  may  deprive  her  hus- 
band of  his  claim  to  curtesy  in  her  real  estate  by  her  will 
disposing  of  it  otherwise.  The  birth  of  a  child  is  not  ne- 
cessary to  give  curtesy  in  this  State.  If  there  is  no  will  and 
no  kindred,  all  the  property  of  a  deceased  husband  or  wife 
goes  to  the  survivor.  If  there  is  no  will,  the  widow  takes 
a  third  of  her  husband's  personal  property ;  if  no  issue,  but 
a  parent,  brother  or  sister,  nephew  or  niece,  survives,  the 
widow  takes  one  half;  if  no  such  relative,  the  whole.  A 
widower  takes  of  his  wife's  personalty  for  his  life  if  she 
leaves  no  will,  but  leaves  issue;  if  no  issue,  then  he  takes 
the  whole  absolutely. 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery;  impotency;  ca- 
nonical causes  of  impediment  existing  previous  to  marriage; 
abandonment  for  three  years;  illicit  intercourse  by  wife  be- 
fore marriage  unknown  to  the  husband  at  time  of  the  mar- 
riage. Divorce  from  bed  and  board  is  given  for  excessively 
vicious  conduct,  cruelty,  abandonment,  and  desertion.  The 
court  may  give  the  wife  her  property  and  alimony,  and  may 
give  custody  of  children  in  its  discretion.  If  the  cause 
occurred  out  of  this  State,  the  plaintiff  or  defendant  must 
have  resided  in  the  State  for  two  years  prior  to  bringing  suit. 
An  action  for  alimony  without  divorce  may  be  brought  by  a 
wife. 


MASSACHUSETTS.  Ill 


MASSACHUSETTS. 

WIFE'S  LEGAL  STATUS. 

A  MARRIED  woman  may  hold"  all  property  of  whatever 
nature  owned  by  her  at  marriage  or  acquired  afterwards  in 
any  way  except  from  her  husband,  and  may  manage  and 
control  it  as  if  she  were  unmarried,  except  that  she  cannot 
convey  or  mortgage  her  real  estate  so  as  to  give  a  clear  title, 
unless  her  husband  joins  with  her  in  the  deed  in  release  of 
his  curtesy.  She  may  receive  as  a  gift  from  her  husband 
personal  apparel,  ornaments,  and  articles  necessary  for  her 
personal  use,  to  the  value  of  two  thousand  dollars.  She  may 
make  all  manner  of  contracts  and  they  will  be  binding  on 
her  and  her  estate  as  if  she  were  single,  except  that  she 
cannot  enter  into  any  kind  of  contract  or  agreement  with 
her  husband  which  will  be  binding  on  either  of  them  or  on 
the  estate  of  either.  She  may  enter  into  any  trade,  busi- 
ness, or  profession,  and  may  form  a  business  partnership 
with  any  person  except  her  husband.  In  order  that  the 
property  employed  in  her  separate  business  may  be  pro- 
tected from  her  husband's  debts,  and  in  order  that  he  may 
be  free  from  responsibility  for  her  business  contracts,  a 
"  married  woman's  certificate  "  must  be  filed  in  the  clerk's 
office  in  the  city  or  town  where  she  does  business;  in  the 
absence  of  such  a  certificate,  the  presumption  will  be  that, 
the  business  is  really  her  husband's  and  not  hers.  She  may 
sue  and  be  sued  alone,  except  that  no  suit  can  be  maintained 
between  husband  and  wife.  The  property  of  neither  is 
liable  for  the  debts  of  the  other  contracted  before  or  after 
marriage,  but  contracts  made  by  the  wife  as  her  husband's 
agent  after  marriage  for  necessaries  for  herself  and  family, 
are  binding  on  him.  Her  earnings  are  her  own  and  cannot 


112  LAW   OF   HUSBAND    AND    WIFE. 

be  claimed  by  him  or  trusteed  by  his  creditors.  She  may  be 
executrix,  administratrix,  guardian,  or  trustee.  She  may 
make  a  will  disposing  of  all  her  property  if  her  husband's 
consent  be  written  and  signed  upon  the  document  itself. 
Without  his  consent,  her  will  is  good  to  dispose  of  one  half 
her  personal  property,  and  the  title  to  her  real  property  after 
his  life  interest  in  it  shall  cease,  except  in  the  case  where 
the  law  gives  him  her  realty  to  the  value  of  five  thousand 
dollars,  as  referred  to  below.  Marriage  revokes  or  suspends 
the  will  of  a  woman  made  previously. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail.  If  no  curtesy 
attaches,  there  having  been  no  child  born  alive  during  the 
marriage,  the  widower  takes  a  life  interest  in  one  half  of 
all  the  realty  owned  by  his  wife  during  marriage,  instead  of 
the  whole.  If  no  issue  survives  at  the  husband's  death,  the 
widow  takes  one  half  his  realty  for  her  life  instead  of  one 
third.  Also  at  the  death  of  either  husband  or  wife,  leaving 
no  issue,  the  surviving  widow  or  widower  takes  the  real 
estate  owned  by  the  deceased  at  death,  in  fee,  absolutely,  up 
to  the  value  of  five  thousand  dollars;  the  widow  takes  her 
life  interest  besides  in  one  half  the  balance  of  her  hus- 
band's real  estate;  and  the  widower  takes  above  the  five 
thousand  dollars'  worth,  his  life  interest  in  the  whole  of  the 
balance  if  his  curtesy  has  attached  by  the  birth  of  a  child 
(since  deceased),  or  in  one  half  of  it,  if  no  child  has  been 
born.  No  provisions  of  any  will  left  by  the  deceased  can 
deprive  either  widow  or  widower  of  these  claims  on  the  real 
estate  of  the  deceased,  and  the  widower  may  also  claim 
one  half  his  deceased  wife's  personalty.  The  widow  can 
claim  one  third  of  her  deceased  husband's  personalty  if 


MASSACHUSETTS.  113 

issue  survives.  If  no  issue  survives,  she  may  claim  all  his 
personalty  up  to  the  value  of  five  thousand  dollars;  the  value 
of  the  next  five  thousand  dollars  goes  to  his  heirs  or  accord- 
ing to  his  will,  and  the  balance  above  this  ten  thousand  dol- 
lars' worth  is  equally  divided  between  the  widow  and  her 
husband's  heirs  or  legatees;  but  if  he  leaves  a  will,  then  if 
the  widow's  share  of  personalty  as  stated  above,  exceeds  the 
value  of  ten  thousand  dollars,  she  can  only  take,  as  against 
the  will,  the  income  for  her  life  of  such  surplus,  the  value 
of  ten  thousand  dollars  going  to  her  absolutely  in  any  case, 
whether  there  is  a  will  or  not. 

DIVORCE. 

Causes  for  divorce  are  adultery ;  impotency ;  extreme 
cruelty ;  utter  desertion  for  three  consecutive  years  next 
prior  to  the  filing  of  the  libel;  gross  and  confirmed  habits 
of  intoxication ;  cruel  and  abusive  treatment ;  or,  on  the 
libel  of  the  wife,  when  the  husband,  being  of  sufficient 
ability,  grossly  or  wantonly  and  cruelly  refuses  or  neglects 
to  provide  suitable  maintenance  for  her.  Also  for  uniting 
with  any  religious  society  that  believes  the  relation  of  hus- 
band and  wife  unlawful,  and  continuing  with  such  society 
three  years  without  the  consent  of  the  other;  and  sentence 
to  confinement  at  hard  labor  for  five  years. 

All  decrees  are  nisi  in  the  first  instance,  but  they  may 
become  absolute  at  the  expiration  of  six  months  on  appli- 
cation of  either  party,  if  no  reconciliation  has  taken  place 
and  if  no  cause  is  shown  by  any  one  interested  why  the 
absolute  decree  should  not  be  given.  To  give  the  court 
jurisdiction,  the  parties  must  have  lived  together  as  husband 
and  wife  in  this  State,  or  if  the  cause  occurred  elsewhere, 
they  must  have  previously  lived  together  here,  and  one  of 
them  must  also  have  been  resident  here  when  the  cause 

8 


114  LAW   OF    HUSBAND    AND    WIFE. 

occurred;  or  if  they  were  inhabitants  of  this  State  at  the 
time  of  the  marriage  and  the  libellant  (plaintiff)  has  lived 
here  three  years  next  prior  to  the  action,  it  is  sufficient;  or  if 
the  libellant  has  resided  in  this  State  five  consecutive  years 
next  prior  to  the  action,  unless  it  appears  that  he  or  she  came 
nere  for  the  express  purpose  of  obtaining  a  divorce,  and  not 
intending  to  remain  here. 

The  court  may  decree  alimony  and  custody  of  children. 
The  guilty  party  cannot  marry  again  until  the  expiration  of 
two  years  after  the  date  of  the  absolute  decree. 


MICHIGAN. 

WIFE'S  LEGAL  STATUS. 

ALL  property  of  whatever  kind  owned  by  a  -woman  at 
marriage  and  all  that  she  acquires  afterwards  from  any 
source  constitutes  her  separate  property,  free  from  her  hus- 
band's control  or  debts.  She  may  manage  and  control  the 
same  as  if  unmarried.  She  may  deal  directly  with  her 
husband,  and  may  carry  on  trade  or  business  in  her  own 
name  if  her  husband  consents.  She  may  make  contracts  of 
all  kinds  for  the  benefit  of  hers'elf  or  her  estate,  but  she 
cannot  enter  into  ordinary  contracts  of  suretyship  for  her 
husband  or  any  other  person.  Husband  and  wife  may  con- 
tract together  in  such  cases  as  were  upheld  by  the  old  equity 
courts.  She  may  dispose  of  all  her  property  by  sale,  gift, 
deed,  or  will,  free  from  her  husband's  consent  or  joinder. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy,  but  common  law  dower  still  prevails. 
If  a  wife  dies  without  a  will  and  leaving  personal  property, 
the  husband  takes  one  third  after  payment  of  debts  and 


MICHIGAN.  115 

charges  of  administration,  or,  if  there  is  but  one  child,  he 
takes  half ;  if  there  is  no  issue  nor  parent,  brother  or  sister 
or  issue  of  any,  husband  takes  the  whole.  If  a  husband  dies 
leaving  no  issue,  all  his  real  estate  goes  to  his  widow  for  her 
life  ;  if  he  leave  no  kindred,  it  goes  to  his  widow  absolutely. 
If  he  leave  personalty  and  no  will,  one  third  goes  to  the 
widow,  or  if  there  is  but  one  child,  one  half  ;  if  no  issue 
survives,  the  widow  takes  it  all  up  to  the  value  of  one  thou- 
sand dollars  and  half  the  balance  above  that  sum,  unless  no 
parent,  brother,  or  sister  of  the  deceased,  or  issue  of  a  de- 
ceased brother  or  sister  survives,  in  which  case  the  widow 
takes  it  all.  If  the  husband  leaves  a  will,  the  widow  may 
choose  whether  she  will  take  the  provision,  if  any,  made  for 
her  by  the  will,  or  the  share  .given  her  by  the  statute;  and  if 
she  choose  the  latter,  she  may  take  such  share  up  to  the  value 
of  ten  thousand  dollars,  and  half  the  balance  which  she  would 
have  taken  had  there  been  no  will.  If  no  provision  is  made 
for  her  by  the  will,  she  may  take  just  what  would  have  come 
to  her  if  the  deceased  had  left  no  will.  A  widow  may  remain 
one  year  in  the  dwelling-house  of  her  deceased  husband  with- 
out rent,  and  may  have  her  reasonable  sustenance  for  that 
time  out  of  his  estate. 


DIVORCE. 

Causes  of  absolute  divorce  are  adultery;  impotency; 
imprisonment  for  three  years  ;  desertion  for  two  years ; 
habitual  drunkenness;  divorce  obtained  in  another  State 
by  the  other  party.  Divorce  from  bed  and  board,  or  ab- 
solute divorce  at  the  discretion  of  the  court,  may  be  given 
for  extreme  cruelty,  whether  from  personal  violence,  deser- 
tion, or  otherwise  ;  desertion  for  two  years ;  and  in  favor  of 
the  wife  when  the  husband,  being  of  sufficient  ability,  grossly 


116  LAW  OF   HUSBAND   AND   WIFE. 

or  wantonly  and  cruelly  refuses  or  neglects  to  provide 
suitable  maintenance  for  her.  Sentence  to  imprisonment 
for  life  absolutely  dissolves  marriage  without  any  decree  of 
divorce  or  other  process. 

Plaintiff  must  have  resided  in  the  State  one  year  next 
preceding  the  action,  unless  the  marriage  took  place  in  the 
State  and  one  of  the  parties  had  resided  here  ever  since.  If 
the  cause  occurred  outside  the  State,  one  or  other  of  the 
parties  to  the  marriage  must  have  resided  in  the  State  two 
years  next  prior  to  the  suit.  If  there  are  children  under 
fourteen,  the  prosecuting  attorney  must  appear  in  behalf  of 
them. 

The  court  may  provide  concerning  alimony  and  the  cus- 
tody of  children,  and  may  also  decree  that  the  guilty  party 
shall  not  marry  again  for  any  stated  time,  not  exceeding 
two  years. 

Marriages  within  the  prohibited  degrees,  bigamous  mar- 
riages, and  marriages  performed  during  the  insanity  or 
idiocy  of  one  of  the  parties,  are  void  without  divorce. 

MINNESOTA. 

WIFE'S  LEGAL  STATUS. 

ALL  property  belonging  to  a  woman  at  marriage  and  all 
acquired  by  her  afterwards  in  any  way,  is  her  own,  free 
from  her  husband's  control  or  debts.  She  may  manage, 
control,  and  dispose  of  her  property,  and  may  contract  as  if 
single;  she  may  even  make  binding  contracts  with  her 
husband,  except  concerning  his  or  her  real  estate.  Such 
contracts,  also  powers  of  attorney  from  one  to  the  other 
concerning  real  estate,  are  void.  To  convey  her  real  estate 
or  any  interest  therein,  or  to  mortgage  it,  or  lease  it  for 


MINNESOTA.  117 

more  than  three  years,  her  husband  must  join  in  the  con- 
veyance. He  is  liable  for  necessaries  furnished  her,  but 
otherwise  neither  is  liable  for  the  debts  of  the  other.  She 
may  make  a  will  of  all  her  property,  except  that  neither 
husband  nor  wife  can  deprive  the  other,  without  her  or  his 
consent,  of  her  or  his  claim  to  one  third.  All  common  law 
disabilities  are  practically  removed  from  married  women. 
They  may  act  as  executrix  or  administratrix,  and  may  be 
appointed  guardian.  A  woman  is  of  age  at  eighteen,  but 
if  married  younger,  may  join  with  her  husband  in  deeds  of 
convevance  while  under  age. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  The  surviving  widow  or 
widower  takes  the  homestead  of  the  deceased  for  her  or  his 
life,  free  from  the  debts  of  the  deceased;  and  after  payment 
of  debts,  one  third  of  all  the  other  real  estate  owned  by  the 
deceased  at  any  time  during  the  marriage  also  goes  to  such 
survivor  absolutely,  as  well  as  one  third  of  the  personalty, 
besides  certain  small  specific  provisions  out  of  the  per- 
sonalty which  are  payable  to  the  survivor  and  children  in 
preference  to  creditors. 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery;  impotency;  cruel 
and  inhuman  treatment;  sentence  to  imprisonment  in  state- 
prison;  wilful  desertion  for  three  years;  habitual  drunken- 
ness for  one  year  next  preceding  the  action.  For  absolute 
divorce,  the  plaintiff  must  have  resided  in  the  State  one 
year,  except  in  cases,  of  adultery  committed  while  resident 
in  the  State. 

Divorce  from  bed  and  board  may  be  given  to  the  wife  for 
cruel  and  inhuman  treatment ;  such  conduct  on  part  of  hus- 


118  LAW   OF   HUSBAND   AND   WIFE. 

band  as  may  render  it  unsafe  or  improper  for  the  wife  to  live 
•with  him ;  abandonment  of  wife  and  refusal  or  neglect  to  pro- 
vide for  her.  For  this  limited  divorce,  both  parties  must  be 
inhabitants  of  the  State ;  or  the  marriage  must  have  taken 
place  in  the  State  and  the  wife  be  an  actual  resident  at  time 
of  the  complaint,  or  if  the  marriage  took  place  elsewhere,  the 
parties  must  have  resided  here  for  one  year  and  the  wife  be 
an  actual  resident  at  time  of  the  complaint. 

The  court  may  decree  in  its  discretion  concerning  custody 
of  children  and  alimony,  but  the  allowance  given  to  the  wife 
cannot  exceed  one  third  of  her  husband's  personal  estate  and 
the  value  of  her  dower  in  his  real  estate.  If  the  divorce  be 
for  her  adultery,  her  own  realty  may  be  withheld  from  her. 

Marriages  within  the  prohibited  degrees,  and  bigamous 
marriages  are  absolutely  void;  and  marriages  may  be  pro- 
nounced void  by  the  court  on  account  of  the  absence  for 
five  years  of  one  of  the  parties ;  lack  of  legal  age  ;  and  when 
induced  by  force  or  fraud. 


MISSISSIPPI. 

WIFE'S  LEGAL  STATUS. 

ALL  property  belonging  to  a  woman  at  marriage,  or  com- 
ing to  her  afterwards  in  any  way,  is  her  own,  free  from  her 
husband's  debts  or  control,  and  may  be  managed,  sold,  and 
conveyed  by  her  as  if  single.  She  may  make  all  kinds  of 
contracts,  with  her  husband  as  with  any  one  else,  but  in 
order  that  gifts  and  conveyances  between  husband  and  wife 
may  be  binding,  they  must  be  written,  acknowledged,  arid 
recorded.  The  husband  cannot  convert  his  wife's  property 
to  his  own  use,  but  he  may  use  it  for  the  support  of  the 
family  with  her  consent.  She  may  engage  in  any  trade,  or 


MISSISSIPPI.  119 

business,  alone.  She  may  make  a  will  of  her  property,  real 
and  personal,  as  if  single.  All  common  law  disabilities  are 
practically  removed  from  married  women. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower  in  the  estates  of  persons 
deceased  since  November,  1880.  Since  that  date,  if  a  hus- 
band or  wife  dies  without  a  will  and  leaving  children,  the 
widow  or  widower  takes  a  child's  share  both  of  realty  and 
personalty;  if  no  issue  survives,  the  widow  or  widower  takes 
all  the  estate  absolutely,  both  real  and  personal.  One  year's 
provisions  out  of  the  effects  of  her  deceased  husband,  or  an 
allowance  of  money  for  the  purchase  of  necessaries  for 
herself  and  children,  is  always  set  apart  for  a  widow. 

DIVORCE. 

Causes  for  divorce  are  adultery;  bigamy;  impotency;  that 
the  parties  are  within  the  degrees  of  consanguinity  or  af- 
finity prohibited  by  law  ;  sentence  to  penitentiary;  wilful, 
continued,  and  obstinate  desertion  for  two  years;  habitual 
drunkenness;  insanity  or  idiocy  at  time  of  marriage;  ha- 
bitual, cruel,  and  inhuman  treatment  marked  by  personal 
violence  ;  pregnancy  of  wife  at  marriage  by  another  and  un-. 
known  to  the  husband.  Plaintiff  must  have  resided  one 
year  in  the  State  before  filing  the  bill.  The  court  may  make 
any  decree  in  its  discretion  concerning  alimony  and  the  cus- 
tody of  children. 


120  LAW   OF   HUSBAND   AND   WIFE. 


MISSOURI. 

WIFE'S  LEGAL  STATUS. 

A  MARRIED  woman  may  hold  in  her  own  name  all  per- 
sonal property,  including  her  earnings,  acquired  before  or 
after  marriage,  free  from  the  debts  or  control  of  her  hus- 
band, except  that  it  will  be  liable  for  debts  incurred  by  him 
for  necessaries  for  her  and  the  family.  She  may  sue  for 
such  property  alone.  She  may  have  real  property  also  which 
is  held  by  a  trustee  for  her  use.  Stocks  and  bonds  given  by 
a  parent  to  a  daughter  are  her  own,  free  from  her  husband's 
debts.  She  may  make  contracts  binding  upon  her  property, 
real  and  personal,  but  such  contracts  must  concern  her 
separate  estate.  She  cannot  convey  her  interest  in  realty 
without  her  husband's  joinder.  The  husband's  property, 
except  such  as  he  received  from  her,  is  not  liable  for  the 
wife's  antenuptial  debts.  She  may  make  a  will  of  all  her 
property,  real  and  personal;  but  neither  a  wife  nor  a  husband 
can  by  a  will  deprive  the  survivor  of  curtesy  or  dower,  unless 
such  survivor  choose  to  abide  by  the  will,  thereby  voluntarily 
renouncing  claim  to  curtesy  or  dower.  She  cannot  act  as 
executrix  or  administratrix.  Women  are  of  age  at  eighteen. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail.  If  a  husband 
dies  leaving  issue,  the  widow  takes  a  child's  share  of  his  per- 
sonalty. If  no  issue,  then  she  takes  absolutely  all  the  per- 
sonal property  which  came  to  him  by  the  marriage  and  also 
one  half  of  all  the  real  and  personal  estate  of  which  he  died 
possessed,  provided  she  makes  a  written  election  within  one 
year  to  take  such  share,  subject  to  the  payment  of  his  debts, 


MONTANA.  121 

instead  of  her  dower,  or  any  provision  in  his  will.  This  elec- 
tion must  be  acknowledged  and  recorded.  If  no  election  is 
made,  she  can  only  claim  dower  in  his  realty,  as  against  his 
will,  and  no  share  of  his  personalty.  But  if  either  husband 
or  wife  leaves  no  issue,  parent,  brother,  sister,  nephew,  or 
niece,  and  no  will,  the  widow  or  widower  takes  all  the 
estate. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  bigamy;  ab- 
sence without  reasonable  cause  for  one  year;  conviction  of 
felony  or  infamous  crime  after  marriage,  or  before  marriage 
if  without  the  knowledge  of  the  other;  habitual  drunkenness 
for  one  year;  such  cruel  and  barbarous  treatment  as  to 
endanger  the  life  of  the  other;  such  indignities  as  render  the 
life  of  the  other  intolerable;  in  favor  of  the  wife,  that  the 
husband  is  a  vagrant;  in  favor  of  the  husband,  that  the  wife 
was  pregnant  at  time  of  marriage  by  another  and  without 
the  husband's  knowledge.  Plaintiff  must  have  resided  one 
year  in  the  State. 

If  a  husband  unjustly  deserts  his  wife,  and  she  prefers  not 
to  apply  for  a  divorce,  she  may  have  a  decree  of  court  pro- 
viding for  her  maintenance  out  of  his  property,  authorizing 
her  to  sell  his  real  estate,  to  claim  payment  from  his  debtors, 
and  to  claim  the  earnings  of  her  minor  children. 


MONTANA. 

WIFE'S  LEGAL  STATUS. 

THE  community  system  of  property  prevails.  All  property 
owned  by  a  wife  at  marriage,  or  acquired  thereafter  in  any 
way,  is  her  separate  property  free  from  her  husband's  debts, 


122  LAW   OF   HUSBAND   AND' WIPE. 

unless  contracted  for  necessaries  for  herself  and  minor  chil- 
dren. But  such  property  must  be  itemized  in  a  list  and  be 
recorded  in  the  registry  of  deeds  in  the  county  where  she 
resides.  A  statute  of  1887  declares  that  she  has  the  same 
legal  existence  and  personality  after  marriage  as  before,  and 
may  sue  in  her  own  name,  and  may  make  contracts  in  her 
own  name  binding  on  herself  and  her  property  and  not  on 
her  husband,  and  may  dispose  of  any  interest  in  real  estate. 
She  may  become  a  sole  trader  by  making  a  written  declara- 
tion of  her  intention,  acknowledging  and  recording  it.  She 
is  then  responsible  for  maintenance  of  her  children.  She  may 
make  a  will  of  all  her  property.  Marriage  of  a  woman  re- 
vokes her  will  previously  made.  Women  are  of  age  at 
eighteen. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  the  community  system  pre- 
vailing instead,  unless  dower  was  restored  by  the  act  of 
Congress  dated  March  3,  1887,  whereby  it  was  enacted  that 
a  widow  shall  have  the  right  of  dower  in  all  the  Territories 
of  the  United  States.  Whether  dower  will  prevail  in  the  new 
State  of  Montana,  will  probably  be  settled  by  legislative 
action.  On  the  death  of  the  wife,  the  entire  community 
property  belongs  to  the  husband.  At  death  of  the  husband, 
one  half  the  community  property  goes  to  the  wife,  and  the 
other  half  goes  by  his  will,  or  to  his  heirs.  If  either  party 
dies  without  a  will,  the  widow  or  widower  takes  half  of  all 
the  separate  property  of  the  deceased,  if  there  is  but  one 
child  or  issue  of  but  one,  or  if  there  is  no  child ;  if  more  than 
one,  or  issue  of  more  than  one,  the  widow  or  widower  takes 
one  third.  If  there  is  no  issue,  nor  parent,  nor  brother  or  sis- 
ter, the  entire  estate  goes  to  the  widow  or  widower. 


NEBRASKA.  123 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  bigamy; 
wilful  desertion  without  reasonable  cause  for  one  year; 
habitual  drunkenness  for  one  year ;  extreme  cruelty  ;  con- 
viction of  felony  or  other  infamous  crime;  and  in  favor  of 
the  wife,  wilful  desertion  by  husband,  and  departure  from 
Montana  without  intention  of  returning.  Plaintiff  must  have 
resided  in  Montana  one  year,  unless  the  offence  was  com- 
mitted while  one  or  both  parties  resided  there.  The  court 
may  make  decrees  concerning  alimony  and  custody  of  chil- 
dren in  its  discretion.  Any  woman  who  is  poor  may  prose- 
cute suit  without  payment  of  costs. 


NEBRASKA. 

WIFE'S  LEGAL  STATUS. 

ALL  property  owned  by  a  woman  at  marriage,  and  all  ac- 
quired by  her  afterwards  in  any  way  except  by  gift  from  her 
husband,  and  including  her  earnings,  constitutes  her  sepa- 
rate property,  free  from  her  husband's  debts  or  control  ;  but 
it  is  liable  for  debts  contracted  for  necessaries  furnished  the 
family,  if  no  property  belonging  to  the  husband  can  be  found 
\>y  the  sheriff  out  of  which  to  satisfy  an  execution  against 
him.  She  may  sue  and  be  sued  alone,  may  convey  her  real 
estate  (except  that  husband  and  wife  cannot  convey  directly 
to  each  other),  and  contract  in  reference  to  her  separate 
estate,  in  the  same  manner  and  with  like  effect  as  a  married 
man  may  do.  She  may  carry  on  trade  or  business  on  her 
own  account.  Neither  is  liable  for  the  debts  of  the  other 
contracted  before  marriage.  A  wife  may  make  a  will  of  all 


124  LAW   OP   HUSBAND   AND   WIPE. 

her  property.     A  woman  is  of  age  at  eighteen,  or  a  married 
woman  at  any  age  after  sixteen. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail,  with  the  following 
distinctions  regarding  curtesy.  If  a  wife  leaves  issue  by  a 
former  husband,  such  issue  takes  her  property  at  once  (except 
gifts  from  the  surviving  husband),  and  the  widower  takes 
no  curtesy.  If  she  leaves  issue  by  her  surviving  husband,  or 
by  both,  he  takes,  as  curtesy,  a  life  interest  in  one  third  of  the 
portion  of  her  property  which  is  inherited  by  his  own  children. 
If  a  husband  dies  leaving  no  will  and  no  issue,  all  his  real  es- 
tate goes  to  his  widow  for  life,  and  all  his  personalty  goes  to 
her  absolutely.  If  he  leaves  no  kindred,  it  all  goes  to  the 
widow  absolutely.  Of  the  personal  property  left  by  a  man  who 
leaves  no  will  but  has  issue,  the  widow  takes  a  child's  share. 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery;  irnpotency;  wil- 
ful abandonment  for  two  years  ;  habitual  drunkenness  ;  sen- 
tence to  imprisonment  for  three  years.  Divorce  from  bed 
and  board,  or  absolute  divorce  at  the  discretion  of  the  court, 
when  the  husband,  being  of  sufficient  ability  to  suitably 
maintain  his  wife,  grossly  or  wantonly  and  cruelly  refuses  or 
neglects  to  do  so;  desertion  for  two  years;  extreme  cruelty. 

Plaintiff  must  have  resided  in  the  State  and  county  six 
months,  except  when  the  marriage  was  performed  in  the 
State  and  plaintiff  has  resided  here  from  then  till  time  of 
bringing  action.  Court  may  make  decrees  concerning  ali- 
mony and  custody  of  children.  Divorce  may  be  opened  up 
at  any  time  within  six  months,  during  which  time  neither 


NEVADA.  125 

party  can  marry.  A  marriage  induced  by  force  or  fraud,  or 
performed  when  one  of  the  parties  is  under  the  age  of  legal 
consent,  may  be  pronounced  void  by  the  court. 


NEVADA. 

WIFE'S  LEGAL  STATUS. 

THE  community  system  prevails  here.  All  property  owned 
by  either  husband  or  wife  at  marriage,  or  acquired  after- 
wards by  gift,  by  will  or  inheritance,  constitutes  the  separate 
property  of  each ;  but  all  other  property  acquired  after  mar- 
riage is  the  common  property  of  both,  though  subject  to  the 
control  of  the  husband,  who  may  dispose  of  it  as  of  his  own, 
during  the  marriage.  The  wife  may  manage,  control,  and 
dispose  of  her  separate  property  alone,  without  her  husband's 
consent  or  joinder ;  but  to  prove  it  as  her  own,  it  must  be 
inventoried  and  recorded.  She  may  contract  alone  concerning 
her  separate  property,  and  sue  and  be  sued  concerning  it. 
Husband  and  wife  may  contract  directly  with  each  other, 
subject  however  to  the  usual  rules  of  law  governing  parties 
who  stand  in  confidential  relations.  She  may  be  a  sole 
trader  by  application  to  the  court.  She  is  then  liable  for 
maintenance  of  her  children.  Also  if  there  is  no  community 
property,  and  the  husband  has  no  separate  property  and  is 
unable  to  support  himself,  she  must  support  him  if  she  has 
property.  She  may  make  a  will  of  all  her  property  as  if 
unmarried.  With  her  husband's  consent,  written  on  the 
will,  she  may  also  dispose  of  her  half  of  the  common  prop- 
erty. Marriage  revokes  a  woman's  will  previously  made. 
A  married  woman  may  be  appointed  executrix  or  adminis- 
tratrix. Women  are  of  age  at  eighteen. 


1-0  LAW   OF   HUSBAND   AND   WIFE. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower.  On  the  death  of  the  wife, 
the  entire  community  property  goes  to  the  husband,  and  on 
the  death  of  the  husband  without  a  will  and  without  issue,  it 
all  goes  to  the  wife,  unless  she  has  been  living  apart  from 
him  without  such  cause  as  would  give  her  ground  for  divorce, 
in  which  case  she  takes  no  part  of  the  community  property ; 
but  otherwise,  one  half  goes  to  her,  and  the  other  half  goes 
to  his  issue  or  according  to  his  will.  Also  of  the  separate 
property  of  husband  and  wife,  both  real  and  personal,  if 
either  dies  without  a  will  and  leaving  no  children,  or  only 
one  child  or  issue  thereof,  the  widow  or  widower  takes  one 
half ;  if  more  than  one,  the  widow  or  widower  takes  one 
third;  if  no  issue,  parent,  brother,  or  sister  survives,  the 
widow  or  widower  takes  it  all. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  wilful  deser- 
tion for  one  year;  conviction  of  felony  or  infamous  crime  ; 
habitual  gross  drunkenness,  contracted  since  marriage,  inca- 
pacitating the  party  from  contributing  to  the  support  of  the 
family;  extreme  cruelty;  in  favor  of  the  wife,  for  neglect  of 
the  husband  to  provide  the  common  necessaries  of  life  for 
one  year,  when  such  neglect  could  be  avoided  by  ordinary 
industry  on  the  part  of  the  husband,  and  is  not  the  result  of 
his  poverty.  The  plaintiff  must  have  resided  in  the  State 
and  county  six  months,  unless  the  action  be  brought  in  the 
county  where  the  defendant  resides,  or  where  the  cause  of 
action  occurred.  The  community  property  is  equally  divided 
on  divorce,  unless  the  cause  is  adultery  or  extreme  cruelty, 
in  which  case  the  court  may  make  such  a  division  of  the 
property  as  in  its  discretion  seems  just. 


NEW    HAMPSHIRE.  127 

Bigamous  marriages  and  those  within  the  prohibited 
degrees,  are  void;  and  marriages  induced  by  fraud,  or 
performed  while  one  of  the  parties  is  under  age,  may  be 
pronounced  void  by  the  court. 


NEW  HAMPSHIRE. 

WIFE'S  LEGAL  STATUS. 

ALL  property  owned  by  a  woman  at  marriage,  or  afterwards 
acquired  by  her  in  any  way,  including  her  earnings,  is  her 
own,  free  from  the  control  or  debts  of  her  husband.  She 
may  sell  or  convey  it  or  dispose  of  it  by  will  as  freely  as  a 
married  man  may  do  with  his  property,  but  neither  husband 
nor  wife  can  deprive  the  other  of  the  right  to  dower  or  cur- 
tesy.  She  may  make  all  manner  of  contracts,  except  that 
she  cannot  bind  herself  or  her  property  for  her  husband,  as 
surety  or  guarantor,  or  by  any  kind  of  undertaking.  Convey- 
ances of  real  estate  cannot  be  given  directly  between  hus- 
band and  wife,  but  in  some  cases  they  may  contract  together. 
She  is  liable  for  her  own  debts,  except  for  necessaries;  for 
these  her  husband  is  bound.  She  may  make  a  will  of 
all  her  property,  but  not  so  as  to  deprive  him  of  curtesy 
in  her  realty  or  of  one  third  of  heY  personalty,  or  in  case 
no  issue  survives,  of  one  half  of  it.  If  her  husband  is 
insane  or  spendthrift,  or  has  deserted  her  for  three  months, 
or  has  joined  a  religious  society  that  ignores  marriage,  she 
may  apply  to  the  judge  of  probate  for  a  separate  main- 
tenance out  of  his  property,  and  the  decree  will  also  secure 
her  own  property  to  her,  as  well  as  the  earnings  of  herself 
and  her  minor  children  ;  if  they  never  live  together  again, 
her  property  will  descend  as  though  she  were  a  widow.  She 
may  also,  if  deserted  or  justifiably  living  apart  from  her 


128  LAW   OF   HUSBAND  AND  WIFE. 

husband,  apply  to  the  Supreme  Court  to  prohibit  him  from 
imposing  restraint  on  her  liberty,  and  for  an  order  concern- 
ing her  eupport  and  the  custody  of  minor  children.  Also 
if  he  does  not  provide  for  her,  or  treats  her  with  extreme 
cruelty  or  is  an  habitual  drunkard,  he  may  be  prohibited 
from  entering  the  house  or  tenement  in  which  she  lives,  if 
she  owns  it  or  pays  the  rent. 

CLAIMS  ON  PROPERTY. 

Common  law  dower  in  cultivated  land  prevails.  Or  the 
widow  may  waive  her  dower  and  any  provision  in  her  hus- 
band's will,  and  take  one  third  absolutely  of  all  the  realty 
owned  by  him  at  his  death ;  or  if  he  leaves  no  issue,  she  takes 
one  half  absolutely.  Common  law  curtesy  also  prevails,  but 
the  widower  may  claim  one  third  or  one  half  of  his  wife's 
land  absolutely  on  the  same  terms  as  a  widow  may  do,  except 
that  if  she  leaves  any  issue  by  a  former  husband,  and  no 
child  by  himself  has  been  born  so  that  he  has  no  right  by 
the  curtesy,  he  can  take  one  third  of  her  realty  only  for  his 
life.  And  if  he  has  wilfully  abandoned  her  or  failed  to 
support  her,  or  in  consequence  of  his  own  neglect  has  not 
been  heard  from  for  three  years  prior  to  her  death,  he  can 
claim  no  part  of  her  property,  real  or  personal.  Of  the  per- 
sonal property  left  by  either  husband  or  wife,  the  survivor 
may  take  one  third,  or  if  there  is  no  issue,  one  half,  despite 
the  provisions  of  any  will  of  the  deceased.  A  reasonable 
allowance  may  always  be  given  to  a  widow  for  her  present 
support  at  the  death  of  her  husband,  out  of  his  personal 
estate. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  extreme 
cruelty;  conviction  of  crime  punishable  in  this  State  with 


NEW   JEESEY.  129 

imprisonment  for  more  than  a  year,  and  actual  imprisonment 
under  such  conviction;  treatment  seriously  injuring  health; 
treatment  endangering  reason ;  absence  without  being  heard 
from  for  three  years;  habitual  drunkenness  for  three  years 
together ;  joining  any  religious  sect  that  believes  the  relation 
of  husband  and  wife  unlawful,  and  refusal  to  cohabit  for  six 
months ;  wilful  absence  of  husband  from  wife  for  three  years, 
making  no  provision  for  her;  wilful  absence  of  wife  from 
husband  for  three  years,  without  his  consent;  when  the  wife 
has  gone  to  reside  out  of  the  State  and  remains  absent  and 
separate  from  her  husband  for  ten  years  together,  without 
his  consent  and  without  claiming  marital  rights ;  when  the 
wife  of  a  citizen  of  another  State,  living  separate,  has  resided 
in  this  State  three  years,  the  husband  having  left  the  United 
States  intending  to  become  a  citizen  of  another  country,  and 
not  having  come  into  this  State  and  claimed  his  marital 
rights  during  this  period,  and  not  having  made  provision  for 
her  support. 

Both  parties  must  reside  in  the  State ;  or  the  plaintiff 
must  reside  here  and  personal  service  must  have  been  made 
on  the  defendant  in  the  State;  or  one  of  the  parties  must 
reside  here,  and  one  of  them  must  have  resided  here  one 
year  next  prior  to  the  action. 

Bigamous  marriages,  and  those  within  the  prohibited 
degrees,  are  void. 


NEW  JERSEY. 

WIFE'S  LEGAL  STATUS. 

THE  real  and  personal  property  held  by  a  woman  at  mar- 
riage, and  all  acquired  afterwards  by  gift,  grant,  descent, 
devise,  or  bequest,  and  the  profits  and  income  therefrom,  and 


180  LAW   OF   HUSBAND    AND   WIFE. 

her  earnings,  constitute  her  separate  property,  free  from  her 
husband's  debts  or  control.  Since  January,  1875,  she  may 
bind  herself  by  contracts  as  though  unmarried,  except  that 
she  cannot  contract  with  her  husband,  and  cannot  become  an 
accommodation  iudorser,  guarantor,  or  surety,  nor  is  she 
liable  ou  any  promise  to  answer  for  the  debt  or  default  of 
another.  She  may  sue  and  be  sued  alone  concerning  her 
separate  property,  except  that  she  cannot  sue  her  husband. 
She  cannot  convey  her  real  property  without  her  husband's 
consent,  unless  he  refuses  or  neglects  to  support  her.  when 
she  may  have  an  order  of  court  enabling  her  to  do  so.  She 
may  make  a  will  of  all  her  property  as  if  single,  except  that 
she  cannot  deprive  her  husband  of  his  claim  on  her  real 
estate.  Marriage  and  the  birth  of  a  child  revokes  a  will 
made  before  the  marriage.  The  powers  of  an  executrix  or 
administratrix,  or  of  a  woman  who  is  guardian  or  trustee,  are 
revoked  by  her  marriage ;  but  she  and  her  husband  may  be 
appointed  together  on  giving  satisfactoiy  bonds. 

CLAIMS  ox  PROPERTY. 

Common  law  curtesy  and  dower  in  real  estate  prevail.  If 
a  wife  dies  without  a  will,  her  husband  takes  all  her  personal 
property.  If  a  husband  dies  without  a  will,  the  widow  takes 
one  third  of  his  personalty ;  or  if  there  is  no  issue,  she  takes 
one  half.  Household  goods  to  the  value  of  two  hundred  dol- 
lars, and  real  estate  occupied  by  the  husband  at  his  death  to 
the  value  of  one  thousand  dollars,  are  secured  in  any  case  to 
the  widow  and  children,  and  she  cannot  lose  this  claim  by 
any  waiver  of  it. 

DIVORCE. 

Causes  of  absolute  divorce  are  adultery;  bigamy;  mar- 
riage within  the  prohibited  degrees  ;  wilful,  continued,  and 


TERRITORY   OF   NEW   MEXICO.  131 

obstinate  desertion  for  three  years.     Divorce  may  be  given 
from  bed  and  board  for  extreme  cruelty. 

One  of  the  parties  must  have  been  an  inhabitant  of  the 
State  at  the  time  the  cause  occurred ;  or  the  marriage  must 
have  taken  place  in  the  State  and  the  plaintiff  be  an  actual 
resident  at  the  time  the  cause  occurred  and  at  the  time  of 
beginning  action  ;  or  if  the  cause  is  adultery,  it  must  have 
been  committed  in  the  State  and  one  or  both  the  parties 
reside  here  at  the  time  of  beginning  action ;  or  one  of  the 
parties  must  be  an  inhabitant  at  the  time  of  beginning  the 
action,  and  one  of  them  a  resident  for  the  three  years  dur- 
ing which  desertion  has  continued.  Also  in  cases  of  adultery 
committed  out  of  the  State,  the  court  has  jurisdiction  if  one  of 
the  parties  has  lived  in  the  State  three  years  next  preceding 
the  beginning  of  the  action. 


TERRITORY  OF  NEW  MEXICO. 

WIFE'S  LEGAL  STATUS. 

ALL  property  owned  by  a  woman  at  marriage,  or  acquired 
afterwards  by  gift,  by  will  or  inheritance,  is  her  separate 
property,  and  that  of  the  husband  is  his,  all  other  property 
acquired  during  marriage,  together  with  the  proceeds  of  their 
separate  estates,  being  joint  or  community  property.  He  has 
the  control  of  her  property  during  marriage.  She  is  bound 
by  her  contracts  as  if  unmarried.  She  cannot  convey  her 
real  estate  alone.  Neither  is  liable  for  the  debts  of  the  other. 
If  she  purchases  necessaries  for  the  family  as  his  agent,  her 
property  is  not  liable  for  them ;  otherwise,  it  is.  She  cannot 
sue  or  be  sued  without  joining  her  husband  as  a  party.  She 
may  make  a  will  as  if  unmarried.  There  is  no  law  fixing 
the  age  of  majority  of  women,  but  they  may  marry  at  fifteen ; 


132  LAW   OF   HUSBAND    AND   WIFE. 

if  younger,  the  marriage  is  void.     They  may  make  a  will  of 
all  their  property  at  twelve  years  of  age. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  unless  dower  was  restored 
by  the  act  of  Congress  dated  March  3,  1887,  whereby  it  was 
enacted  that  a  widow  shall  have  the  right  of  dower  in  all 
the  Territories  of  the  United  States.  On  the  death  of  the 
husband,  whether  he  leaves  a  will  or  not,  one  third  of  his 
real  estate  goes  to  her  absolutely,  free  from  all  demands  of 
creditors,  unless  it  exceeds  ten  thousand  dollars,  when  the 
widow  takes  only  one  fourth,  and  as  against  creditors,  only 
one  fifth.  If  a  widow  marries  again,  there  being  issue  of 
the  previous  marriage,  she  cannot,  during  the  subsequent 
marriage,  alienate  real  estate  which  came  to  her  by  the  pre- 
vious marriage ;  and  at  her  death,  it  goes  to  the  issue  of  such 
marriage.  If  a  wife  dies  with  or  without  a  will,  the  widower 
takes  one  third  absolutely  of  her  real  estate  after  payment  of 
her  debts  contracted  before  marriage.  If  a  husband  die.s 
without  a  will,  leaving  not  more  than  one  child,  the  widow 
takes  one  half  the  real  estate;  and  if  not  more  than  two 
children,  she  shares  the  personal  estate  equally  with  the  child 
or  children;  but  in  any  case  she  takes  not  less  than  one 
third.  If  either  husband  or  wife  dies  without  a  will  and 
without  issue,  but  leaving  a  parent,  the  widow  or  widower 
takes  three  fourths  of  the  entire  property;  if  no  parent, 
then  the  widow  or  widower  takes  it  all. 

DIVORCE. 

Causes  for  divorce  are  adultery  ;  abandonment;  cruel  and 
inhuman  treatment.  Plaintiff  must  have  resided  in  the  Ter- 
ritory six  months  next  prior  to  beginning  suit. 


NEW   YOKE.  133 

NEW   YORK. 

WIFE'S  LEGAL  STATUS. 

ALL  property  owned  by  a  woman  at  marriage,  or  acquired 
by  her  afterwards  in  any  way  whatever,  including  her  earn- 
ings and  the  proceeds  of  any  trade  or  business  in  which  she 
may  engage,  constitutes  her  separate  property,  free  from  her 
husband's  debts  or  control,  but  liable  for  her  own  debts  and 
contracts.  She  may  make  contracts  of  any  kind  which  she 
could  if  single,  except  with  her  husband,  and  even  some 
contracts  between  husband  and  wife  have  been  held  valid. 
Transfers  and  conveyances  of  real  estate  directly  between 
husband  and  wife  are  valid.  She  may  convey  her  real  estate 
to  third  parties  without  her  husband's  consent  or  joinder,  as 
if  unmarried.  She  may  carry  on  any  trade  or  business,  and 
may  sue  and  be  sued  as  if  single.  She  may  be  appointed 
executrix,  administratrix,  and  guardian;  and  may  make  a 
will  of  all  her  property,  real  and  personal,  without  his  con- 
sent, thereby  depriving  him  of  curtesy.  To  devise  real  pro- 
perty she  must  be  twenty-one  years  old,  but  she  may  make 
a  will  of  personalty  at  sixteen. 

CLAIMS  ON  PROPERTY. 

Common  law  dower  still  prevails,  and  the  husband's  will 
cannot  deprive  his  wife  of  this  right.  But  curtesy  only 
attaches  to  such  real  estate  as  the  wife  owns  at  her  death 
and  has  not  disposed  of  by  her  will.  On  the  death  of  either 
husband  or  wife  without  a  will,  the  surviving  widow  or 
widower  takes  one  third  of  the  personal  estate  of  the  de- 
ceased ;  and  if  there  is  no  issue,  the  widow  or  widower  takes 
one  half  instead  of  a  third.  If  there  is  no  will  and  no  issue 


184  LAW  OP   HUSBAND   AND   WIFE. 

or  parent,  but  a  brother  or  sister,  nephew  or  niece  of  the 
deceased  survives,  then  the  widow  takes  one  half  the  per- 
sonalty, and  all  the  residue  up  to  the  value  of  two  thousand 
dollars.  If  there  is  no  brother  or  sister,  nephew  or  niece,  then 
the  widow  takes  it  all.  But  where  a  married  woman  dies 
without  leaving  issue  and  without  a  will,  the  widower  takes 
all  her  personalty. 

DIVORCE. 

The  only  cause  for  absolute  divorce  is  adultery.  To  give 
the  court  jurisdiction,  both  parties  must  have  been  residents 
of  the  State  when  the  offence  was  committed ;  or  they  must 
have  been  married  in  the  State;  or  the  plaintiff  must  have 
been  resident  in  the  State  when  the  offence  was  committed 
and  when  the  action  is  begun  ;  or  the  offence  must  have 
been  committed  in  the  State  and  the  plaintiff  be  resident 
here  when  the  action  is  begun.  Divorce  leaves  the  plaintiff 
free  to  marry  again;  but  the  defendant  cannot  be  remarried 
within  the  State  during  the  plaintiff's  life,  except  to  the 
plaintiff,  unless  the  court  modifies  the  decree  after  the  lapse 
of  five  years  and  allows  the  defendant  to  marry,  which  it 
may  do  if  the  plaintiff  has  meanwhile  married  again,  and  if 
the  conduct  of  the  defendant  has  been  uniformly  good.  But 
the  defendant  may  remarry  in  another  State,  and  if  the  mar- 
riage is  valid  there,  it  will  be  valid  in  New  York. 

Divorce  from  bed  and  board,  not  freeing  from  the  mar- 
riage bond,  but  decreeing  a  legal  separation,  may  be  given 
for  cruel  and  inhuman  treatment;  conduct  rendering  it  un- 
safe and  improper  to  live  with  the  defendant;  abandonment; 
or  in  favor  of  the  wife,  for  the  husband's  neglect  or  refusal 
to  provide  for  her. 

Marriage  may  be  declared  void  for  want  of  legal  age  by 
either  party;  bigamy;  idiocy  or  insanity;  impotency ;  con- 


.  NORTH    CAROLINA.  135 

sent  obtained  by  force,  fraud,  or  duress.  The  legal  age  at 
which  marriage  may  be  contracted  is  eighteen  for  males, 
and  sixteen  for  females.  A  woman  may  obtain  a  decree 
annulling  her  marriage  when  she  was  under  sixteen  at  the 
time  it  was  performed,  if  it  was  without  the  consent  of  her 
parent  or  guardian,  if  the  ceremony  was  not  followed  by 
cohabitation  or  consummation,  and  if  it  was  not  ratified  by 
any  mutual  consent  of  the  parties  after  she  arrived  at  the 
age  of  sixteen. 


NORTH  CAROLINA. 

WIFE'S  LEGAL  STATUS. 

ALL  property  of  whatever  kind,  owned  by  a  woman  at 
marriage,  and  all  acquired  afterwards  in  any  way,  remains 
her  own  separate  property,  free  from  her  husband's  debts. 
She  may  dispose  of  it  by  her  will,  saving  to  her  husband  his 
right  of  curtesy  in  her  real  estate  ;•  and  with  her  husband's 
written  consent  she  may  convey  it  by  her  deed.  Unless  she 
is  a  free-trader,  or  has  her  husband's  written  consent,  or 
unless  he  has  abandoned  her,  she  cannot  make  contracts 
binding  on  her  property  except  for  her  ante-nuptial  debts 
and  for  necessaries  for  herself  and  family.  She  may  become 
a  free-trader  by  her  husband's  consent,  written,  acknowl- 
edged, and  recorded,  or  by  ante-nuptial  contract,  also  signed 
and  registered;  and  she  may  then  contract  and  deal  in  all 
business  matters  as  though  unmarried.  Marriage  revokes  a 
will  previously  made. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail.  If  a  man  dies 
without  a  will,  his  widow  takes  one  half  his  personalty  if  he 


1C6  LAW   OP   HUSBAND   AND   WIFE. 

leaves  no  issue;  one  third,  if  there  are  not  more  than  two 
children,  or  descendants  thereof  ;  a  child's  share,  if  there  are 
more  than  two,  or  descendants  of  more  than  two.  If  he  dies 
•without  a  will  and  without  kindred,  his  widow  takes  all  his 
property,  real  and  personal. 

DIVORCE. 

Causes  for  absolute  divorce  are  separation  of  the  husband 
from  the  wife  and  open  living  in  adultery;  adultery  of  the 
•wife,  either  with  or  without  separation;  impotency;  preg- 
nancy of  the  wife  at  the  time  of  marriage  by  another,  and 
unknown  to  the  husband;  and  in  favor  of  the  wife,  if  the 
husband  is  indicted  for  a  felony  and  flees  the  State  and  fails 
to  return  within  one  year. 

Causes  for  divorce  from  bed  and  board  are  abandonment ; 
maliciously  turning  the  other  out  of  doors;  cruel  or  bar- 
barous treatment  endangering  life;  such  indignities  to  the 
person  of  the  other  as  render  his  or  her  condition  intolerable, 
and  life  burdensome;  habitual  drunkenness.  In  these  legal 
separations,  alimony  may  be  granted  not  exceeding  the 
third  of  the  annual  income. 

Marriages  may  be  pronounced  void  by  the  court  when 
within  the  prohibited  degrees  of  consanguinity  or  affinity; 
when  parties  were  under  legal  age,  which  is  sixteen  for 
males,  and  fourteen  for  females;  for  bigamy;  impotency;  or 
mental  incapacity  at  time  of  marriage. 


OHIO. 

WIFE'S  LEGAL  STATUS. 

ALT,  property,  of  whatever  kind,  belonging  to  a  woman  at 
marriage,  or  acquired  by  her  afterwards  in  any  manner,  in- 


OHIO.  137 

eluding  her  personal  earnings,  constitutes  her  separate  prop- 
erty, free  from  her  husband's  debts  or  control.  She  may 
manage,  convey,  sell,  and  dispose  of  this  property  by  will  as 
if  unmarried,  except  that  neither  can  deprive  the  other  of 
dower  in  his  or  her  real  estate.  She  may  make  all  manner 
of  contracts  and  they  will  be  binding  on  her  and  her  prop- 
erty; and  she  may  sue  and  be  sued,  as  if  she  were  single. 
Husband  and  wife  may  enter  into  any  transaction  with  each 
other,  subject  only  to  the  general  rules  controlling  the  actions 
of  persons  standing  in  confidential  relations  to  each  other. 
Neither  is  answerable  for  the  acts  or  the  debts  of  the  other  ; 
the  husband  must  support  himself,  wife,  and  minor  children 
by  his  property  or  labor,  but  if  unable  to  do  so,  the  wife 
must  assist  as  far  as  she  is  able.  Husband  and  wife  have  no 
interest  in  each  other's  property,  except  as  regards  dower 
and  wife's  support,  but  neither  can  exclude  the  other  from 
his  or  her  dwelling.  Women  are  of  age  at  eighteen. 

CLAIMS  ON  PROPERTY. 

Curtesy  was  abolished  in  1887,  but  vested  rights  are  not 
affected,  and  any  husband,  married  before  1887,  has  the  right 
of  curtesy  in  all  real  estate  owned  by  his  wife  before  1887, 
whether  a  child  was  born  or  not.  Dower  still  prevails;  and 
a  widower  now  has  the  same  right  of  dower  in  his  wife's  real 
estate  which  his  wife  has  in  his  ;  that  is,  he  may  claim  for 
his  life  one  third  of  all  real  estate  owned  by  his  wife  during 
the  marriage ;  dower  also  attaches  to  all  reversion  and  re- 
mainder interests  held  by  the  deceased  husband  or  wife  in 
fee  simple  at  death,  and  to  all  right,  title,  and  interest,  held 
at  death  by  bond,  article,  lease,  or  other  evidence  of  claim. 
If  any  husband  or  wife  dies  without  a  will  and  without  issue, 
possessed  of  any  property,  real  or  personal,  which  came  to 


138  LAW   OF   HUSBAND   AND   WIFE. 

him  or  her  from  a  former  wife  or  husband  by  gift  or  by  will, 
then  such  property  goes  to  the  issue  of  such  former  wife  or 
husband,  if  any;  if  not,  half  goes  to  brothers  and  sisters  of 
such  former  wife  or  husband,  and  half  to  brothers  and  sis- 
ters of  the  intestate,  but  no  part  to  the  surviving  widow  or 
widower.  Of  other  real  property  left  by  a  husband  or  wife 
who  dies  without  a  will  and  without  issue,  the  widow  or 
widower  takes  the  whole  for  her  or  his  life;  and  of  the  per- 
sonalty, he  or  she  takes  it  all  absolutely,  if  there  is  no  issue ; 
if  issue  survives,  then  the  widow  or  widower  takes  one  half 
of  any  sum  not  exceeding  four  hundred  dollars,  and  one 
third  of  the  residue  above  that  sum.  There  are  also  certain 
articles  of  personal  property  which  must  always  be  set  aside 
for  a  widow  and  minor  children. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  bigamy;  wil- 
ful absence  for  three  years ;  extreme  cruelty ;  fraudulent 
contract  ;  any  gross  neglect  of  duty  for  three  years;  habitual 
drunkenness  for  three  years ;  sentence  and  imprisonment  in 
penitentiary,  if  divorce  is  sought  during  the  imprisonment  ; 
divorce  procured  in  another  State  by  the  other  party,  the 
effect  of  which  is  to  leave  the  latter  party  free  and  the  former 
still  bound.  Plaintiff  must  have  been  a  resident  of  the  State 
for  one  year.  Alimony  and  custody  of  children  may  be  de- 
creed by  the  court  in  its  discretion,  on  granting  a  divorce,  or 
a  wife  may  bring  an  action  for  alimony  and  custody  of 
children  without  divorce,  in  which  case  she  need  not  have 
been  a  resident  for  a  year. 


OREGON.  .  139 

OKEGON. 

WIFE'S  LEGAL  STATUS. 

ALL  property  owned  by  a  woman  at  marriage,  or  acquired 
by  her  afterwards  by  gift,  by  will  or  inheritance  is  her  own, 
free  from  her  husband's  debts  or  control,  and  she  may  man- 
age and  control  it,  convey  it  by  deed,  and  dispose  of  it  by  will 
to  the  same  extent  and  in  the  same  manner  as  a  married  man 
may  do  with  his  property.  She  may  make  contracts  for  the 
benefit  of  herself  and  her  separate  estate,  and  any  contract 
which  is  expressly  charged  upon  her  separate  estate  is  bind- 
ing upon  it.  She  and  her  husband  may  make  all  manner  of 
contracts  together,  and  may  convey  property  directly  each  to 
the  other.  She  may  carry  ori  any  trade  or  business,  and  sue 
and  be  sued  as  if  single.  She  cannot  convey  her  real  estate 
unless  her  husband  joins  in  the  conveyance.  By  a  statute 
passed  in  October,  1880,  all  laws  which  imposed  or  recognized 
civil  disabilities  upon  a  wife,  which  are  not  imposed  or  recog- 
nized as  existing  as  to  the  husband,  were  repealed  ;  but  this 
law  gives  her  no  right  to  hold  office  or  vote.  The  rights  and 
responsibilities  of  the  mother  as  to  the  maintenance  and  edu- 
cation of  the  children  are  the  same  as  those  of  the  father. 
Women  become  of  age  for  most  purposes  at  eighteen,  or  at 
their  marriage ;  but  they  cannot  make  a  valid  will  of  real 
estate  till  twenty-one,  though  they  may  bequeath  personal 
property  at  eighteen.  Marriage  revokes  a  woman's  will 
previously  made. 

CLAIMS  ON  PROPERTY. 

Common  law  dower  prevails;  also  curtesy  whether  a  child 
has  been  born  or  not.  If  a  man  dies  without  a  will  and 
without  issue,  the  widow  takes  all  his  estate,  real  and  per- 


140  LAW    OF    HUSBAND    AND    WIFE. 

sonal.  If  he  leaves  issue,  the  widow  takes  half  the  person- 
alty, but  only  her  dower  in  the  realty.  If  a  wife  dies  without 
a  will,  her  husband  takes  the  whole  of  her  personalty. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  conviction  of 
felony;  habit  of  gross  drunkenness  contracted  before  mar- 
riage and  continued  one  year  prior  to  suit  ;  wilful  desertion 
for  one  year ;  cruel  and  inhuman  treatment  or  personal  in- 
dignities rendering  life  burdensome.  Plaintiff  must  have 
resided  in  the  State  one  year.  If  a  divorce  is  granted,  the 
party  in  whose  favor  it  is  given,  shall  in  all  cases  be  entitled 
to  the  undivided  third  part,  in  his  or  her  individual  right,  in 
fee,  of  the  real  estate  of  the  other,  in  addition  to  any  further 
decree  for  maintenance  which  may  be  given. 

A  marriage  is  void  for  bigamy  ;  or  when  the  parties  are 
within  the  prohibited  degrees  of  relationship;  or  when  one 
of  the  parties  has  one  fourth  or  more  of  negro  blood,  the 
other  party  being  white.  Also  a  marriage  obtained  by  force 
or  fraud  may  be  declared  void  by  the  court.  A  wife  may 
bring  an  action  for  separate  maintenance  and  custody  and 
support  of  children  instead  of  divorce. 


PENNSYLVANIA. 

WIFE'S  LEGAL  STATUS. 

BY  the  "  Married  Persons'  Property  Act  "  passed  in  1887, 
the  common  law  disabilities  which  had  always  obtained 
concerning  married  women  were  removed  almost  entirely, 
though  many  questions  as  to  the  construction  of  the  act  have 
not  yet  been  passed  upon  judicially,  and  are  therefore  not 


PENNSYLVANIA.  141 

clearly  defined  in  their  effects.  The  act  declares  "  that  here- 
after marriage  shall  not  be  held  to  impose  any  disability  on, 
or  incapacity  in,  a  married  woman  as  to  the  acquisition, 
ownership,  possession,  control,  use,  or  disposition  of  property 
of  any  kind  in  any  trade  or  business  in  which  she  may  en- 
gage, or  for  necessaries,  and  for  the  use,  enjoyment,  and  im- 
provement of  her  separate  estate,  real  and  personal,  or  her 
right  and  power  to  make  contracts  of  any  kind,  and  to  give 
obligations  binding  herself  therefor  ;  but  every  married 
woman  shall  have  the  same  right  to  acquire,  hold,  possess, 
improve,  control,  use,  or  dispose  of  her  property,  real  and 
personal,  in  right  and  in  expectancy,  in  the  same  manner 
as  if  she  were  a  feme  sole,1  without  the  intervention  of  any 
trustee,"  except  that  she  cannot  convey  or  mortgage  her  real 
estate  unless  her  husband  joins  with  her;  and  she  cannot 
become  accommodation  indorser,  guarantor  or  surety  for  an- 
other. It  has  been  judicially  decided  in  construing  this  act, 
that  a  wife  cannot  be  held  responsible,  even  upon  a  note 
given  by  herself,  for  a  debt  of  her  husband's  contracting, 
when  she  had  no  part  in  contracting  it  and  it  was  not  for 
necessaries  in  the  family.  The  act  also  declares  that  a  mar- 
ried woman  may  dispose  of  all  her  property,  real  and  personal, 
by  her  will,  executed  in  the  same  manner  as  if  unmarried; 
but  questions  have  arisen  and  have  not  yet  been  settled, 
whether  under  this  law,  she  can  by  her  will  deprive  her 
husband  of  curtesy  in  her  real  estate.  Marriage  revokes  a 
woman's  will  .previously  made.  Marriage  also  revokes  a 
man's  previous  will  so  far  as  to  give  his  surviving  widow  the 
same  share  of  his  property  which  she  would  have  taken  had 
he  died  without  any  will. 

i  An  unmarried  woman. 


142  LAW   OF   HUSBAND   AND   WIFE. 

CLAIMS  ON  PROPERTY. 

Common  law  dower  prevails,  except  that  it  is  barred  by 
the  judicial  sale  of  the  husband's  real  estate  for  his  debts; 
and  except  also  that  dower  attaches  to  estates  in  vested 
remainder  of  which  the  husband  has  not  come  into  posses- 
sion during  his  life,  as  well  as  to  property  of  which  he  has 
.had  actual  possession.  Curtesy  attaches  whether  a  child  has 
been  born  or  not.  If  a  husband  dies  without  a  will  and 
without  issue,  his  widow  takes  one  half  his  realty  for  her 
life  instead  of  one  third;  and  she  takes  it  all  in  fee  abso- 
lutely, if  he  leaves  no  known  heirs.  Of  the  personalty,  the 
widow  takes  one  third  absolutely,  if  there  is  issue;  one  half, 
it'  there  is  none.  Of  the  wife's  personalty,  the  widower  takes 
the  whole,  if  there  is  no  issue;  otherwise  he  takes  a  child's 
share. 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery;  bigamy;  impo- 
tency ;  wilful  desertion  without  reasonable  cause  for  two 
years;  barbarous  treatment  by  husband  endangering  wife's 
life  or  such  indignities  to  her  person  as  to  render  her  condition 
intolerable,  and  life  burdensome,  thereby  forcing  her  to  with- 
draw from  the  house  and  family;  marriage  within  the  prohib- 
ited degrees  of  affinity  or  consanguinity ;  marriage  procured 
by  fraud,  force,  or  coercion,  and  not  subsequently  confirmed; 
sentence  to  imprisonment  for  term  exceeding  two  years,  on 
conviction  for  felony;  cruel  and  barbarous  treatment  by  wife 
rendering  husband's  condition  intolerable,  or  his  life  bur- 
densome. Plaintiff  must  have  resided  one  year  in  the 
State. 

Divorce  from  bed  and  board  may  be  given  for  adultery; 
abandonment  of  wife  by  husband ;  and  turning  wife  out  of 
doors. 


RHODE   ISLAND.  143 

If  divorce  is  for  adultery,  the  guilty  party  cannot  marry 
the  co-respondent,  but  otherwise  both  parties  to  a  divorce 
are  free  to  marry  again.  If  one  party  leaves  the  State  and 
applies  for  divorce  elsewhere,  the  defendant  remaining  here, 
such  divorce  is  not  valid  here. 


RHODE  ISLAND, 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at 
marriage  or  afterwards  acquired  by  her,  including  the  pro- 
ceeds of  her  own  industry,  and  all  rents,  profits,  and  income 
of  such  property,  are  so  far  secured  to  her  as  not  to  be  liable 
for  the  debts  of  her  husband;  and  if  she  survives  him,  it  be- 
comes her  separate  property,  and  is  not  a  part  of  his  estate. 
She  may  sell  her  personal  property  and  make  contracts  con- 
cerning the  sale  of  it,  excepting  her  household  furniture, 
plate,  jewels,  stock  or  shares  in  an  incorporated  company, 
debts  secured  by  mortgage  and  money  on  deposit,  concerning 
all  which  kinds  of  personal  property  and  her  real  property, 
she  can  only  contract  by  joint  deed  with  her  husband.  But 
she  may  control,  transfer,  or  withdraw  money  which  she  has 
deposited  in  any  savings  bank,  together  with  interest  and 
dividends.  She  cannot  enter  into  trade  or  business  alone, 
unless  her  husband  is  insane.  If  her  husband  unjustifiably 
deserts  her  or  fails  to  provide  for  her  for  six  months,  he 
being  of  sufficient  ability  to  provide,  she  may  apply  to  the 
court  for  the  powers  of  a  single  woman.  And  if  a  woman 
comes  into  the  State  without  her  husband  and  continues 
alone  for  one  year,  she  may  thereafter  have  all  the  rights 
and  powers  of  a  widow  until 'he  shall  come  into  the  State, 
when  these  powers  cease.  A  wife's  statutory  separate  estate 


144  LAW   OF   HUSBAND   AND   WIFE. 

is  not  liable  for  necessaries  for  herself  and  children,  even  if 
contracted  by  herself;  but  she  may  have  an  equitable  sepa- 
rate estate,  held  by  trustees  for  her  use,  which  may  be  liable 
for  her  contracts.  Her  husband  may  legally  collect  the 
rents,  income,  and  profits  of  her  property,  unless  she  gives  a 
written  notice  to  her  debtor,  lessee,  or  any  corporation  in 
which  she  owns  stock,  to  pay  only  to  herself.  She  cannot  be 
an  executrix  or  administratrix.  She  may  make  a  will,  but 
not  so  as  to  deprive  her  husband  of  curtesy.  A  will  of  per- 
sonal property  may  be  made  at  eighteen  years  of  age,  but 
not  of  realty  till  twenty-one.  Marriage  revokes  a  will  pre- 
viously made. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail.  If  a  husband  dies 
without  a  will,  his  widow  takes  one  third  of  his  personalty 
•where  he  leaves  issue ;  otherwise,  she  takes  one  half. 

DIVORCE. 

Causes  for  absolute  divorce,  or  divorce  from  bed  and  board, 
are  a  marriage  originally  void  or  voidable  by  law;  adultery; 
impotency;  extreme  cruelty ;  continued  drunkenness ;  convic- 
tion for  murder  or  arson,  by  which  the  person  convicted  is 
deemed  to  be  civilly  dead ;  such  absence  or  other  circum- 
stances as  raise  the  presumption  of  natural  death;  wilful 
desertion  for  five  years,  or  for  a  shorter  period  in  the  discre- 
tion of  the  court;  neglect  or  refusal  of  husband,  being  of 
sufficient  ability,  to  provide  necessaries  for  wife;  and  any 
gross  misbehavior  and  wickedness  repugnant  to,  and  in 
violation  of,  the  marriage  covenant.  Also  a  divorce  from  bed 
and  board  may  be  given  for  such  other  causes  as  may  seem, 
to  require  the  same. 


SOUTH    CAROLINA.  145 

The  plaintiff  must  have  resided  one  year  in  the  State. 
The  court  may  decree  custody  of  children  in  its  discretion, 
and  may  allow  an  innocent  wife  alimony  not  exceeding  one 
half  her  husband's  personal  estate  and  the  use  of  half  his 
real  estate,  and  all  her  separate  estate  free  from  her  hus- 
band's control. 


SOUTH   CAROLINA. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at 
marriage,  or  afterwards  acquired  by  her  in  any  way,  includ- 
ing her  earnings  and  income  from  her  property,  constitutes 
her  separate  estate,  free  from  the  control  and  debts  of  her 
husband,  but  liable  for  her  own  debts.  She  may  sell  and  con- 
vey it,  and  dispose  of  it  by  will  as  if  she  were  single,  and  she 
may  deal  in  every  respect  like  a  single  woman.  But  a  husband 
cannot  make  a  deed  or  gift  to  his  wife  in  fraud  of  his  credi- 
tors; and  she  cannot  indorse  for  him,  and  she  is  not  liable  on 
her  own  note  indorsed  by  him;  nor  can  she  be  obliged  to 
support  herself  and  family.  All  conveyances,  mortgages, 
and  like  formal  instruments  affecting  her  separate  estate,  are 
binding  upon  it  whenever  the  intention  to  charge  or  convey 
such  estate  is  declared  in  the  instrument  itself.  She  may 
make  a  will  as  if  single.  She  may  act  as  administratrix  or 
executrix.  Marriage  revokes  the  will  previously  made,  of 
either  a  man  or  woman,  unless  such  will  be  made  expressly 
in  view  of  marriage,  and  providing  for  wife,  or  husband,  and 
children. 

CLAIMS  ox  PROPERTY. 

Curtesy  was  abolished  in  1883.  Dower  prevails,  but  must 
be  waived  if  a  widow  takes  the  provision  made  for  her  by  the 

10  . 


14G  LAW   OF   HUSBAND   AND   WIFE. 

statute,  as  stated  below.  And  if  a  wife  be  insane,  so  proved 
to  the  satisfaction  of  the  probate  judge  though  no  formal 
adjudgment  thereof  has  been  given,  the  court  may  adjudge 
her  to  be  of  unsound  rnind,  and  divest  her  dower.  The  stat- 
ute referred  to  above  gives  to  the  widow  or  widower  of  one 
\vho  dies  without  a  will,  one  third  absolutely  of  all  the  prop- 
erty, real  and  personal,  of  the  deceased  husband  or  wife.  If 
there  is  no  issue,  but  a  parent,  brother  or  sister  of  the  de- 
ceased, or  any  descendant  of  a  brother  or  sister  survives,  then 
the  widow  or  widower  takes  one  half  absolutely;  if  no  such 
kindred,  the  widow  or  widower  takes  two  thirds,  and  the 
rest  goes  to  more  distant  heirs ;  if  no  kin  survives,  the  widow 
or  widower  takes  it  all. 

DIVORCE. 
There  is  no  divorce  in  this  State. 


TENNESSEE. 

WIFE'S  LEGAL  STATUS. 

THE  common  law  disabilities  on  married  women  in  great 
measure  still  prevail.  At  marriage  a  wife's  personal  property 
goes  to  her  husband  and  becomes  his.  It  is  first  liable  for 
her  ante-nuptial  debts;  these  being  paid,  his  creditors  can 
take  the  rest  of  it  for  his  debts  contracted  after  marriage, 
but  his  ante-nuptial  creditors  cannot  claim  their  debts  out  of 
it.  At  his  death,  he  may  dispose  of  it  by  his  will.  But  if 
she  has  a  separate  equitable  estate,  held  in  trust  for  her,  it 
is  only  so  far  subject  to  his  control  or  debts  as  may  be  author- 
ized by  the  instrument  creating  the  trust.  Her  real  estate, 
not  held  in  trust,  cannot  be  taken  during  her  life  by  his 
creditors,  and  he  cannot  sell  it  unless  she  joins  in  the  deed. 


TENNESSEE.  147 

She  cannot  bind  her  general  estate  by  contracts,  nor  can  she 
convey  it  without  his  signature,  unless  they  are  separated, 
one  party  refusing  to  live  with  the  other,  when  she  may  dis- 
pose of  her  real  estate  by  deed,  will,  or  otherwise,  as  if  un- 
married. Her  equitable  estate  she  can  bind  by  contracts  or 
dispose  of  in  any  way  as  if  single,  if  the  power  to  do  so  is  not 
expressly  withheld  in  the  instrument  creating  the  trust. 
But  in  the  case  of  contracts,  her  intention  to  bind  her  sepa- 
rate estate  must  be  clearly  expressed,  else  her  creditors  cannot 
collect  therefrom.  A  wife  cannot  carry  on  trade  or  business, 
unless  her  husband  is  judicially  declared  insane,  when  she 
may  trade,  contract,  sue  and  be  sued  as  if  single.  She  may 
dispose  of  her  equitable  estate  by  will,  if  authorized  so  to  do 
by  the  terms  of  the  instrument  creating  the  trust.  Her  will 
must  in  all  cases  be  formally  executed  and  subscribed  by  two 
witnesses ;  an  olographic  will  not  being  admissible  as  in  case 
of  men  and  unmarried  women. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail.  In  addition  to  her 
dower,  a  widow  may  take  the  homestead  to  the  value  of  not  more 
than  one  thousand  dollars  clear  of  the  husband's  debts.  If  he 
dies  without  a  will,  she  also  takes  a  child's  share  of  his  per- 
sonal estate  remaining  after  the  payment  of  his  debts  ;  or  if 
there  is  no  issue,  she  takes  the  whole.  She  also  takes,  in  any 
case,  such  furniture  and  other  articles  as  are  exempt  from 
execution  for  debt,  free  from  his  creditors,  together  with 
money  or  provisions  for  a  year's  support  of  self  and  family, 
in  their  usual  style  of  life.  If  there  is  no  kindred  who  can 
inherit  the  property  of  one  "who  dies  without  a  will,  the 
widow  or  widower  takes  it  all  in  fee. 


148  LAW  OF  HUSBAND   AND   WIFE. 


DIVORCE. 

Causes  for  absolute  divorce  are  adultery ;  impotency ;  big- 
amy ;  wilful  or  malicious  desertion  without  reasonable  cause 
for  two  years;  conviction  of  infamous  crime  or  of  a  felony, 
•with  sentence  to  confinement  in  the  penitentiary;  attempt 
by  one  on  life  of  the  other  by  poison  or  any  means  showing 
malice ;  refusal  of  wife  to  remove  with  her  husband  to  this 
State  without  a  reasonable  cause,  and  wilfully  absenting  her- 
self from  him  for  two  years ;  pregnancy  of  wife  at  marriage 
by  another,  without  knowledge  of  the  husband ;  habitual 
drunkenness  contracted  after  marriage. 

Causes  for  divorce  from  bed  and  board  or  absolute  divorce 
at  discretion  of  the  court,  to  be  granted  the  wife,  are  such 
cruel  and  inhuman  treatment  towards  her  as  renders  it  un- 
safe and  improper  for  her  to  remain  under  his  dominion  and 
control;  such  indignities  to  her  person  as  render  her  con- 
dition intolerable,  thei'eby  forcing  her  to  leave  him ;  abandon- 
ing her  or  turning  her  out  of  doors  ;  refusing  or  neglecting 
to  provide  for  her.  Plaintiff  must  have  resided  in  the  State 
two  years  next  prior  to  the  petition. 


TEXAS. 

WIFE'S  LEGAL  STATUS. 

THE  community  system  prevails  here.  All  property,  real 
and  personal,  owned  by  either  husband  or  wife  at  marriage, 
and  all  acquired  by  either  after  marriage  by  gift,  devise,  or 
descent,  together  with  the  increase  of  all  real  estate,  consti- 
tutes the  separate  property  of  each ;  while  all  property  ac- 
quired by  either  during  the  marriage  in  any  other  way, 
constitutes  the  community  property  of  both.  But  the  hus- 


TEXAS.  149 

band  has  the  entire  control  of  the  community  property, 
which  he  may  dispose  of  during  the  marriage  without  the 
wife's  consent,  and  it  is  liable  for  all  his  debts,  and  for  the 
wife's  debts  for  family  necessaries.  He  has  also  the  man- 
agement, during  the  marriage,  of  the  wife's  separate  prop- 
erty, but  he  cannot  convey  it  away  unless  she  joins  in  the 
deed  of  conveyance.  She  may  contract  for  the  benefit  of  her 
separate  property,  and  she  may  also  contract  for  family  ne- 
cessaries ;  husband  and  wife  may  be  jointly  sued  on  these  lat- 
ter contracts,  but  if  there  is  insufficient  community  property 
to  pay  the  debts,  then  the  wife's  separate  property  may  be 
taken  on  execution.  She  may  convey  or  mortgage  her  prop- 
erty as  security  for  her  husband's  debts.  The  wife's  separate 
property  must  be  recorded  as  such.  She  cannot  carry  on 
trade  or  business  on  her  own  account,  nor  enter  into  a  busi- 
ness partnership.  She  may  be  executrix,  administratrix,  or 
guardian.  She  may  make  a  will  of  all  her  property.  A 
woman  is  of  age  at  her  marriage,  and  may  make  a  will  and 
convey  property,  though  under  twenty-one  years.  The  laws 
concerning  the  property  rights  of  husband  and  wife  in  Texas 
are  construed  according  to  the  principles  of  the  Spanish  civil 
law  on  the  subject. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  the  community  system  pre- 
vailing instead.  Upon  the  death  of  husband  or  wife,  the 
survivor  takes  one  half  of  the  community  property,  or  if  there 
is  no  issue,  the  whole  of  it.  If  the  deceased  leaves  no  will, 
the  widow  or  widower  also  takes  one  third  of  the  personalty 
of  the  separate  property  absolutely,  and  one  third  of  the 
realty  for  life ;  or  if  there  is  no  issue,  all  of  the  personalty, 
and  one  half  the  realty  absolutely. 


150  LAW   OP   HUSBAND    AND   WIFE. 


DIVORCE. 

Causes  for  divorce  are  impotency  or  any  other  impediment 
that  renders  such  a  contract  void;  such  excesses,  cruel  treat- 
ment, or  outrage  as  renders  living  together  insupportable; 
conviction  of  felony  after  marriage  and  confinement  in  state- 
prison  (except  where  the  conviction  was  had  on  the  testimony 
of  the  plaintiff),  but  suit  for  divorce  on  this  ground  cannot 
be  brought  till  a  year  after  conviction.  Also  in  favor  of 
the  husband,  where  his  wife  is  taken  in  adultery,  or  has 
voluntarily  left  his  bed  a»d  board  for  three  years,  with  intent 
of  abandonment;  and  in  favor  of  the  wife  when  he  has  left 
her  for  three  years  with  intent  of  abandonment,  or  where  he 
has  abandoned  her  and  lived  in  adultery  with  another  woman. 

Plaintiff  must  be  an  actual  inhabitant  of  the  State  and 
must  have  resided  for  six  months  in  the  county  where  suit  is 
brought.  The  court  may  make  decrees  concerning  the  cus- 
tody of  children  and  division  of  property,  but  cannot  com- 
pel one  party  to  convey  his  or  her  real  estate  to  the  other. 


UTAH  TERRITORY. 

WIFE'S  LEGAL  STATUS. 

ALL  property  owned  by  a  woman  at  marriage  or  acquired 
afterwards  in  any  way,  is  her  separate  property,  which  she 
may  control,  convey,  and  dispose  of  by  will  as  if  she  was 
unmarried.  She  may  make  contracts  of  all  kinds  and  bind 
herself  and  property  by  them,  and  sue  and  be  sued  alone. 
She  may  carry  on  any  trade  or  business  with,  or  respect- 
ing, her  separate  property.  A  woman  is  of  age  at  eighteen, 
or  sooner  if  she  marries.  She  may  act  as  executrix  or 
administratrix. 


UTAH   TERRITORY.  151 


CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  unless  dower  was  restored 
by  the  act  of  Congress  of  March  3,  1887,  whereby  it  was 
enacted  that  a  widow  shall  have  the  right  of  dower  in  all  the 
Territories  of  the  United  States.  If  husband  or  wife  dies 
without  a  will,  the  widow  or  widower  takes  one  third  abso- 
lutely of  the  real  and  personal  estate,  if  there  is  only  one  child 
or  descendants  thereof;  if  more  than  one,  then  one  fourth  of 
the  estate  goes  to  widow  or  widower;  if  no  issue  survives, 
the  widow  or  widower  takes  half;  if  no  issue,  no  parent  or 
brother  or  sister  survives,  the  widow  or  widower  takes  all. 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency;  wilful  desertion 
for  more  than  a  year ;  habitual  drunkenness ;  conviction  of 
felony;  extreme  cruelty;  in  favor  of  wife  for  wilful  neglect 
of  husband  to  provide  her  with  common  necessaries  of  life. 
A  bona  fide  residence  of  a  year  by  the  plaintiff  in  the  Territory 
and  in  a  county  within  the  jurisdiction  of  the  court  is  re- 
quired. The  court  may  decree  alimony,  custody  of  children 
and  allowance  for  their  support. 


VERMONT. 

WIFE'S  LEGAL  STATUS. 

ALL  personal  property  and  claims  owned  by  a  woman  at 
marriage,  or  acquired  afterwards  by  any  means  except  by  her 
personal  industry  or  by  gift  from  her  husband,  and  the  in- 
come  and  profits  thereof,  also  her  real  estate  and  its  rents 
and  profits,  constitute  her  separate  estate,  free  from  her  hus- 
band's control  or  his  individual  debts;  but  the  annual  pro- 


152  LAW   OF   HUSBAND   AND  WIFE. 

ducts  of  her  real  estate  may  be  taken  for  debts  created  by 
him  for  necessaries  for  his  wife  and  family,  or  for  labor  or 
materials  used  npon  it,  or  for  its  cultivation  and  improvement. 
Her  earnings  cannot  be  trusteed  for  her  husband's  debts. 
By  a  law  passed  in  1884,  a  wife  may  bind  herself  and  her 
property  by  contracts  of  all  kinds  as  if  unmarried,  except 
that  contracts  directly  between  husband  and  wife  are  invalid. 
She  may  sue  and  be  sued  alone.  She  cannot  convey  her  real 
estate  unless  her  husband  joins  in  the  deed,  and  she  can  only 
become  surety  for  her  husband's  debts  by  mortgage  of  her 
realty.  No  husband  married  since  January,  1884,  is  liable 
for  the  ante-nuptial  debts  of  his  wife.  She  may  make  a  will 
of  all  her  property,  real  and  personal.  She  cannot  be  execu- 
trix or  administratrix. 

CLAIMS  ON  PROPERTY. 

Curtesy  prevails,  also  dower  in  such  real  estate  as  a  husband 
dies  possessed  of,  but  no  dower  in  property  conveyed  by  him 
in  his  life-time.  If  either  husband  or  wife  dies  without  a 
will  and  without  issue,  the  survivor  takes  the  real  or  personal 
estate  of  the  deceased  to  the  value  of  two  thousand  dollars 
absolutely,  and  half  the  residue  above  that  value.  Of  the 
personal  property  where  the  husband  leaves  no  will,  the  widow 
takes  one  third  after  payment  of  claims,  or  as  much  more 
as  the  Probate  Court  assigns  to  her;  or  she  may  waive  her 
husband's  will  and  all  other  claims  on  the  estate,  and  take 
this  provision  instead.  If  it  does  not  exceed  three  hundred 
dollars,  all  may  be  assigned  to  her  and  the  minor  children, 
after  payment  of  funeral  charges  and  expenses  of  adminis- 
tration, free  from  debts. 


VEEMONT.  153 


DIVORCE. 

Causes  for  divorce  are  adultery;  confinement  at  hard  labor 
in  state-prison  for  three  years  or  more,  or  for  life,  when  actually 
confined  at  time  of  the  action ;  intolerable  severity ;  wilful 
desertion  for  three  consecutive  years  ;  absence  unheard  from 
for  seven  years ;  in  favor  of  wife,  for  gross  and  wanton  or  cruel 
neglect  or  refusal  by  the  husband  to  provide  suitable  main- 
tenance for  her,  he  being  of  sufficient  pecuniary  ability  to 
do  so. 

The  parties  must  have  lived  together  in  this  State,  and 
the  plaintiff  must  have  resided  here  one  full  year  next 
before  bringing  suit;  and  if  the  cause  occurred  out  of  the 
State,  the  parties  must  have  lived  together  in  this  State  prior 
thereto,  and  one  of  the  parties  must  have  been  living  in  this 
State  when  the  cause  occurred.  But  divorces  for  adultery, 
intolerable  severity,  or  desertion  for  three  years  may  be  given, 
although  the  cause  occurred  while  the  parties  were  residing 
in  another  State,  providing  the  plaintiff  has  lived  in  this 
State  two  years  after  such  cause  occurred,  and  in  the  county 
one  full  year  before  bringing  suit.  The  defendant  cannot 
marry  again  until  three  years  have  elapsed  after  divorce,  if 
the  plaintiff  live  so  long,  unless  he  remarries  the  plaintiff; 
violation  of  this  rule  is  punishable  by  imprisonment  at  hard 
labor  in  the  state-prison  for  from  one  to  five  years. 

Marriages  may  be  annulled  for  bigamy;  when  within  the 
prohibited  degrees  of  affinity  or  consanguinity ;  for  lack  of 
sufficient  age;  when  consent  was  obtained  by  force  or  fraud; 
or  for  idiocy,  lunacy,  or  impotency  at  the  time  of  the  marriage. 


154:  LAW   OP   HUSBAND   AND   WIFE. 

VIRGINIA. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at 
marriage,  or  afterwards  acquired  by  her  in  any  way,  includ- 
ing her  earnings  and  profits  from  trade  or  business,  constitutes 
her  separate  estate,  free  from  the  control  or  debts  of  her 
husband;  and  she  may  hold,  control,  and  use  it  as  if  she  were 
single,  except  that  she  cannot  deprive  her  husband  of  his 
claim  to  curtesy  in  her  real  estate.  She  may  carry  on  any 
trade  or  business,  but  not  as  a  partner  with  her  husband. 
She  may  make  contracts  as  if  single,  concerning  her  trade  or 
business  and  separate  estate,  or  upon  the  faith  and  credit 
thereof,  and  may  sue  and  be  sued  concerning  them.  Every 
contract  which  she  has  power  to  make,  is  deemed  to  be  made 
with  reference  to  her  separate  estate.  If  a  husband  wilfully 
deserts  his  wife,  and  such  desertion  continues  until  her 
death,  he  thereby  loses  all  claim  on  her  property  at  her  death. 
She  may  make  a  will  of  her  personal  property  at  eighteen, 
and  of  her  real  property  at  twenty-one,  saving  to  her  husband 
his  curtesy.  Marriage  revokes  a  will  previously  made. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail.  If  a  wife  dies 
without  a  will,  the  widower  takes  all  her  personalty.  The 
widow  of  a  husband  who  dies  without  a  will  takes  one  third 
of  his  personalty  if  issue  survives  him;  if  none,  then  she 
takes  all  the  personalty  that  came  to  him  by  virtue  of  his 
marriage  with  her,  prior  to  April,  1877,  and  one  half  of  his 
other  personalty.  If  he  leaves  issue  by  a  former  marriage, 
she  takes  all  that  came  to  him  by  the  marriage  with  her,  and 


VIRGINIA.  155 

one  third  instead  of  one  half  of  his  other  personalty.  If  a 
wife  is  convicted  of  adultery  she  loses  all  claim  to  dower 
unless  her  husband  afterwards  condones  the  wrong. 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery ;  impotency ;  sen- 
tence to  confinement  in  penitentiary;  conviction,  prior  to  the 
marriage,  of  infamous  offence,  without  the  knowledge  of  the 
other;  indictment  on  charge  of  offence  punishable  by  death 
or  confinement  in  penitentiary,  followed  by  flight  from  justice 
'and  absence  for  two  years ;  wilful  abandonment  for  five  years ; 
pregnancy  of  wife  at  marriage  by  another  than  the  husband, 
unknown  to  him ;  and  where  wife  had  been  a  prostitute,  prior 
to  the  marriage,  and  unknown  to  the  husband;  provided  in 
the  last  two  cases,  and  in  that  of  conviction  for  an  infamous 
offence,  that  the  injured  party  leaves  the  other  immediately 
on  discovery  of  the  facts. 

Divorce  from  bed  and  board  may  be  given  for  cruelty;  rea- 
sonable apprehension  of  bodily  hurt;  abandonment  or  deser- 
tion. One  of  the  parties  must  have  lived  in  the  State  at 
least  one  year  prior  to  the  action.  The  court  may  make 
decrees  in  its  discretion  concerning  the  estate  and  mainten- 
ance of  the  parties,  and  custody  and  maintenance  of  children. 

Marriages  may  be  annulled  for  bigamy ;  lack  of  sufficient 
age;  when  one  is  white,  and  the  other  colored;  insanity  or 
impotency  at  time  of  marriage;  or  when  within  the  pro- 
hibited degrees  of  consanguinity  or  affinity. 


156  LAW  OF   HUSBAND   AND   WIPE. 

WASHINGTON. 

WIFE'S  LEGAL  STATUS. 

ALL  property  and  pecuniary  rights  belonging  either  to 
husband  or  wife  at  marriage,  or  afterwards  acquired  by  gift, 
by  will  or  inheritance,  with  the  rents,  issues,  and  profits 
thereof,  constitutes  the  separate  property  of  each,  free  from 
the  debts  or  contracts  of  the  other ;  and  each  may  manage, 
lease,  sell,  convey,  encumber,  or  dispose  of  such  property  by 
will,  as  fully  and  to  the  same  effect  as  if  unmarried.  Property 
acquired  otherwise  by  either,  during  the  marriage,  is  commu- 
nity property.  Either  may  maintain  an  action  against  the 
other  to  recover  property  of  which  the  latter  has  obtained  pos- 
session. They  may  contract  and  convey  directly  with,  and 
to,  each  other.  Neither  is  liable  for  the  other's  ante-nuptial 
debts,  nor  for  the  separate  debts  of  the  other  incurred  after 
marriage.  A  wife  may  receive  the  wages  of  her  personal 
labor,  and  hold  the  same  in  her  own  right.  Contracts  may 
be  made  by,  and  enforced  against,  a  wife  as  if  she  were  un- 
married. The  husband  has  the  management  and  control  of 
the  community  real  property,  but  he  cannot  sell,  convey,  or 
encumber  it  unless  his  wife  joins  in  the  deed.  He  has  also 
the  management  and  control  of  the  personal  property,  and 
may  dispose  of  it  as  of  his  separate  property,  but  he  cannot 
by  his  will  deprive  his  wife  of  more  than  half  of  it.  All 
laws  which  impose  or  recognize  civil  disabilities  upon  a  wife, 
which  are  not  imposed  or  recognized  as  existing  as  to  the 
husband,  are  abolished;  but  this  provision  of  law  gives 
women  no  right  to  vote  or  hold  office.  The  rights  and  re- 
sponsibilities of  parents,  in  the  absence  of  misconduct,  are 
equal,  and  the  mother  is  as  fully  entitled  to  the  custody, 
control,  and  earnings  of  the  children  as  the  father;  and  on 


WASHINGTON.  157 

the  death  of  the  father,  the  mother  comes  into  as  full  and 
complete  control  of  the  children  and  their  estate  as  the 
father  does  in  the  case  of  the  mother's  death.  The  earnings 
and  accumulations  of  the  wife  and  her  minor  children,  living 
with  her,  or  in  her  custody  while  she  is  living  separate  from 
her  husband,  are  her  separate  property.  Women  are  of  age 
at  eighteen.  Women  have  had  full  political  rights  twice 
conferred  upon  them  by  the  territorial  Legislature,  and  they 
have  voted  at  several  elections  during  the  past  six  years, 
held  various  offices,  and  for  a  few  years  they  performed  jury 
duty,  both  grand  and  petit;  but  the  law  was  pronounced 
unconstitutional  by  the  Supreme  Court  in  1888. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  the  community  system  pre- 
vailing instead,  unless  dower  was  restored  by  the  act  of 
Congress  of  March  3,  1887,  whereby  it  was  enacted  that  a 
widow  shall  have  the  right  of  dower  in  all  the  Territories  of 
the  linked  States.  Whether  dower  will  prevail  in  the  new 
State  of  Washington  will  probably  be  early  settled  by  legis- 
lative action.  By  the  community  system  the  surviving  hus- 
band or  wife  takes  one  half  the  community  property,  subject 
to  half  the  community  debts;  if  the  deceased  leaves  no  will 
and  no  issue,  then  the  entire  community  property  goes  to 
the  surviving  widow  or  widower.  Of  the  separate  property, 
if  deceased  leaves  no  will,  the  widow  or  widower  takes  one 
half  the  realty  if  there  is  but  one  child  or  descendants  thereof; 
if  more  than  one  child,  the  survivor  takes  one  third;  if  no 
issue,  parent,  brother,  or  sister  of  the  deceased  survives,  all 
goes  to  the  widow  or  widower.  Of  the  personal  property, 
the  widow  or  widower  takes  one  half  where  issue  survives  ; 
otherwise,  the  whole. 


158  LAW  OP  HUSBAND  AND  WIFE. 

DIVORCE. 

Causes  for  divorce  are  adultery ;  impotency;  abandonment 
for  one  year ;  cruel  treatment  or  personal  indignities  rendering 
life  burdensome;  habitual  drunkenness;  neglect  or  refusal 
of  husband  to  make  suitable  provision  for  his  family;  im- 
prisonment in  penitentiary,  if  complaint  is  filed  during  such 
imprisonment;  marriage  obtained  by  force  or  fraud,  if  not 
followed  by  subsequent  voluntary  cohabitation ;  and  for  any 
other  cause  deemed  by  the  court  sufficient  when  the  court  is 
satisfied  that  the  parties  can  no  longer  live  together.  Plaintiff 
must  have  lived  a  year  in  the  Territory.  The  court  may 
decree,  in  its  discretion,  concerning  the  property  of  the  parties 
and  custody  of  the  children. 

A  marriage  may  be  declared  void  for  want  of  sufficient 
age  or  mental  capacity. 


WEST  VIRGINIA. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at  mar- 
riage, and  all  acquired  afterwards  except  from  her  husband, 
and  the  rents,  issues,  and  profits  thereof,  constitute  her 
separate  property  which  she  may  hold,  convey,  and  dispose 
of  by  will,  free  from  her  husband's  control  or  debts,  except 
that  she  cannot,  while  living  with  her  husband,  convey  her 
real  estate  unless  he  joins  in  the  deed.  Her  property  alone 
is  liable  for  her  ante-nuptial  debts.  But  she  is  not  liable 
for  debts  for  support  of  herself  and  children,  unless  she 
specially  makes  such  debts  her  own.  She  may  transact 
business  as  if  single,  and  her  separate  estate  is  liable  for 
debts  thus  created.  Her  personal  property  and  the  income 


WEST    VIRGINIA.  159 

from  her  real  estate  may  be  taken  for  her  debts,  but  her 
real  estate  itself  cannot  be  applied  to  this  purpose,  unless  a 
lien  or  mortgage  was  placed  upon  it  as  security  for  such 
debts. 

CLAIMS  ON  PROPERTY. 

Common  law  curtesy  and  dower  prevail.  If  husband  or 
wife  dies  without  a  will,  the  real  estate  of  the  deceased  goes 
to  the  widow  or  widower,  in  case  no  kindred  survives.  But 
of  the  personalty,  the  widow  or  widower  takes  the  whole, 
where  there  is  no  issue ;  otherwise,  one  third. 


DIVORCE. 

Causes  for  absolute  divorce  are  adultery ;  impotency  ;  wilful 
abandonment  for  three  years;  sentence  to  confinement  in  the 
penitentiary ;  conviction  of  infamous  offence  before  marriage 
unknown  to  the  other  ;  pregnancy  of  wife  at  time  of  marriage 
by  another  and  unknown  to  the  husband;  where  wife,  prior 
to  the  marriage,  had  been  notoriously  a  prostitute,  unknown 
to  the  husband;  or  where  the  husband,  prior  to  the  marriage, 
unknown  to  the  wife,  had  been  notoriously  a  licentious 
person. 

Causes  for  divorce  from  bed  and  board  are  cruel  or  in- 
human treatment;  reasonable  apprehension  of  bodily  hurt; 
desertion  ;  habit  of  drunkenness  formed  since  the  marriage  ; 
non-age.  Marriages  performed  within  the  State  may  also  be 
annulled  for  amalgamation  of  white  and  colored  races; 
bigamy;  prohibited  degrees  of  consanguinity  or  affinity; 
insanity ;  impotency  ;  non-age. 

One  of  the  parties  must  have  been  a  resident  of  the  State 
at  least  one  year,  and  action  must  be  brought  in  the  county 
in  which  the  parties  last  cohabited,  or  of  the  county  where 


160  LAW  OF   HUSBAND   AND   WIFE. 

one  of  the  parties  resides.  The  court  may  make  decrees  in 
its  discretion  concerning  the  custody  of  the  children  and  the 
maintenance  of  the  parties. 


WISCONSIN. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at 
marriage,  or  afterwards  acquired  in  any  way  except  from  her 
husband,  is  her  separate  property,  together  with  the  rents, 
issues  and  profits  thereof,  free  from  the  control  and  debts  of 
her  husband.  She  may  control  and  convey  her  property  and 
dispose  of  it  by  will,  as  if  she  were  unmarried.  Her  earn- 
ings are  her  own.  She  may  make  contracts  concerning  her 
separate  estate,  and  she  may  sue  and  be  sued  alone  concern- 
ing such  contracts.  Contracts  and  conveyances  of  property 
directly  between  husband  and  wife  are  valid  and  will  be  up- 
held. She  may  transact  business  in  her  own  name  free  from 
her  husband's  control  or  debts,  if  he  has  deserted  her  or  fails 
to  provide  for  her  support  and  that  of  her  children.  The 
husband  is  not  liable  for  his  wife's  ante-nuptial  debts.  She 
probably  cannot  bind  herself  by  a  promissory  note,  or  as 
surety  or  indorser  for  another.  A  mother  is  entitled  to  the 
custody  of  her  children  if  the  father  is  dead.  She  may  be 
general  guardian  of  the  children's  property,  and  executrix. 

CLAIMS  ON  PROPERTY. 

Common  law  dower  prevails  ;  also  curtesy  in  the  real  es- 
tate of  which  a  wife  is  in  possession  at  her  death,  if  she  does 
not  provide  otherwise  by  her  will.  But  a  widower  takes  no 
curtesy  if  his  wife  leaves  issue  by  a  former  husband  which 


WISCONSIN.  161 

would  inherit  the  property.  The  widow  takes  the  homestead 
free  of  all  debts  of  the  deceased.  If  a  husband  dies  without 
a  will  and  without  issue,  the  widow  takes  all  his  estate,  real 
and  personal.  Where  there  is  issue,  and  no  will,  the  widow 
takes  a  child's  share  of  the  personalty.  If  a  widow  waives 
any  provision  made  for  her  by  her  husband's  will  within  a 
year,  she  may  claim  her  dower  and  homestead  rights,  and 
the  same  share  of  his  personalty  which  she  would  have  taken 
if  he  had  left  no  will,  except  that  if  he  leaves  a  will,  her 
share  cannot  exceed  one  third  of  his  net  personal  estate. 

DIVORCE. 

Causes  for  absolute  divorce  are  adultery;  impotency;  sen- 
tence to  imprisonment  for  three  years  or  more ;  wilful  deser- 
tion for  one  year  next  preceding  commencement  of  suit ; 
cruel  and  inhuman  treatment;  habitual  drunkenness  for  one 
year  next  preceding  commencement  of  action;  voluntary 
separation  for  five  years ;  when  wife  is  given  to  intoxication. 

Causes  for  divorce  from  bed  and  board  are  wilful  deser- 
tion for  one  year;  cruel  and  inhuman  treatment;  habitual 
drunkenness  for  one  year;  where  wife  is  given  to  intoxica- 
tion ;  extreme  cruelty ;  refusal  or  neglect  of  husband,  being 
of  sufficient  ability,  to  provide  for  his  wife ;  such  conduct  on 
part  of  husband  towards  wife  as  may  render  it  unsafe  or  im- 
proper for  her  to  live  with  him. 

Marriages  which  are  within  the  prohibited  degrees  of  con- 
sanguinity, and  bigamous  marriages,  are  absolutely  void 
without  any  divorce  proceedings.  A  decree  of  nullity  may 
be  had  for  non-age  or  lack  of  mental  capacity;  when  mar- 
riage was  obtained  by  force  or  fraud  and  is  not  followed  by 
voluntary  cohabitation;  and  when  either  is  imprisoned  for 
life. 

11 


102  LAW   OF    HUSBAND   AND   WIFE. 

Plaintiff  must  have  resided  in  the  State  one  year  immedi- 
ately prior  to  commencement  of  suit,  unless  the  cause  is 
adultery  committed  while  the  plaintiff  resided  in  the  State ; 
or  unless  the  marriage  was  performed  in  the  State  and  the 
plaintiff  has  resided  here  from  that  time  till  date  of  action. 
The  court  may  decree  in  its  discretion  concerning  alimony 
and  the  care,  custody,  maintenance,  and  education  of  children. 


WYOMING  TERRITORY. 

WIFE'S  LEGAL  STATUS. 

ALL  property,  real  and  personal,  owned  by  a  woman  at 
marriage  or  afterwards  acquired  by  her  in  any  way,  and  the 
rents  and  profits  thereof,  are  her  own,  free  from  the  control 
or  debts  of  her  husband.  She  may  make  contracts  of  all 
kinds,  carry  on  any  trade  or  business,  sue  and  be  sued  alone, 
convey  her  property,  and  dispose  of  all  her  property  by  will, 
as  if  unmarried.  But  she  cannot  act  as  administratrix  of  an 
estate.  Women  may  vote  at  all  elections  and  are  eligible  to 
all  offices,  but  they  cannot  be  called  upon  to  do  jury  service. 

CLAIMS  ON  PROPERTY. 

There  is  no  curtesy  or  dower,  unless  dower  was  restored 
by  the  act  of  Congress  dated  March  3,  1887,  whereby  it  was 
enacted  that  a  widow  shall  have  the  right  of  dower  in  all  the 
Territories  of  the  United  States.  When  a  husband  or  wife 
dies  without  a  will,  leaving  issue,  the  widow  or  widower 
takes  half  the  property  of  the  deceased,  real  and  personal ;  if 
no  issue  survives,  the  widow  or  widower  takes  three  fourths, 
or  if  the  entire  estate  does  not  exceed  ten  thousand  dollars, 
the  widow  or  widower  takes  it  all,  subject  to  the  payment 
of  debts  and  charges  of  administration. 


WYOMING   TEREITORY.  163 

DIVORCE. 

Causes  for  divorce  are  adultery;  impotency ;  conviction  of 
felony  and  sentence  to  imprisonment  after  marriage;  con- 
viction of  felony  before  marriage,  unknown  to  the  other  ; 
wilful  desertion  for  one  year;  habitual  drunkenness;  extreme 
cruelty;  neglect  of  husband,  for  one  year,  to  provide  his  .wife 
with  common  necessaries  of  life,  he  being  able  to  do  so  by 
ordinary  industry;  intolerable  indignities;  vagrancy  of  hus- 
band ;  pregnancy  of  wife  at  marriage  by  another  and  without 
the  husband's  knowledge. 

A  marriage  is  void  without  a  decree  on  account  of  bigamy; 
consanguinity;  or  mental  incapacity  at  time  of  marriage. 
A  marriage  may  be  decreed  void  for  non-age,  if  the  parties 
separate  before  arriving  at  the  legal  age  and  do  not  live  to- 
gether afterwards ;  and  where  the  marriage  was  obtained  by 
force  or  fraud,  and  was  not  followed  by  voluntary  cohabita- 
tion. Plaintiff  must  have  resided  six  months  in  the  Terri- 
tory, unless  the  marriage  was  performed  here  and  the  plaintiff 
has  resided  here  from  that  time  till  date  of  action.  The  court 
may  make  decrees  in  its  discretion  concerning  alimony  and 
custody  of  children. 


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